Fraser v. Social Security Administration

Filing 12

FINDINGS AND RECOMMENDATION recommending that the Commissioner's decision be reversed; that this case be remanded and the ALJ should re-assess Fraser's residual functional capacity and accord him a reasonable opportunity to submit any lay witness statements; and that judgment should be entered for Fraser. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 4/23/2019. (ljb)

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

BOB L. FRASER
v.

PLAINTIFF
NO. 4:18-cv-00332 BSM/PSH

NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration

DEFENDANT

FINDINGS AND RECOMMENDATION
INSTRUCTIONS

The following proposed Recommendation has been sent to Chief United States
District Judge Brian S. Miller. 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
Plaintiff Bob L. Fraser (“Fraser”) began this case by filing a complaint pursuant
to 42 U.S.C. 405(g). In the complaint, he challenged the final decision of the Acting
Commissioner of the Social Security Administration (“Commissioner”), a decision based
upon the findings of an Administrative Law Judge (“ALJ”).
Fraser maintains that the ALJ’s findings are not supported by substantial
evidence on the record as a whole.1 Fraser offers several reasons why, one of which has
merit. Fraser maintains that the ALJ erred when she balked at the request to hear from
Fraser’s wife during the administrative hearing and thereafter failed to give her a
reasonable opportunity to submit a written statement. The undersigned agrees.
The record reflects that Fraser filed an application for supplemental security
income payments on June 17, 2016. In the application, he alleged that he is disabled
and unable to work because of a bipolar disorder, an obsessive compulsive disorder,
gout, and back problems. He supported his application, in part, with the progress notes
from Daysprings Behavioral Health Services (“Daysprings”) where he was seen for his
mental impairments. The application was denied initially and on reconsideration.
On July 27, 2017, a hearing was held before an ALJ. See Transcript at 81-117.
Fraser testified during the hearing that he lives with his wife and has worked with her
on occasion. When he was asked about his visits to Daysprings, he testified as follows:
Q. And can you tell me a little bit about – you’ve been going to Day
Springs, looks like for two and a half, almost three years now?

The question at bar is whether the ALJ’s findings are supported by substantial evidence on the
record as a whole. “Substantial evidence means less than a preponderance but enough that a reasonable
person would find it adequate to support the decision.” See Boettcher v. Astrue, 652 F.3d 860, 863 (8th
Cir. 2011).
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A. Yes, ma’am.
Q. Do you feel like they’re the ones that know the most about your
condition mentally?
A. They know a lot about it. I feel like my wife knows more about
it than they do, probably, but they know a lot.
Q. Yeah, and you had told me that. It was real important that you
wanted your wife to testify. I’m aware of that.
A. Yeah.
Q. But – but – you feel like she knows you more than anybody. That
you do go to Day Springs, don’t you?
A. They know me a lot, too. Because I tell them about everything
that’s going on with me. (INAUDIBLE).
See Transcript at 93-94. At the conclusion of Fraser’s testimony, the following exchange
occurred between the ALJ and Fraser’s attorney:
[ALJ]: Okay, any – any other follow up?
ATTY: No, Your Honor, but I did want to call [Fraser’s] wife. I know
you’re not real thrilled about lay witnesses.
ALJ: Well, I just don’t – when somebody is very articulate and is
able to testify, I don’t find it necessary to hear from anybody else. If you
want to have her write out a witness statement, and put it in the record,
she can certainly do that, and I’ll take a look at it. But I don’t find it
necessary to hear from anybody in addition.
ATTY: I understand that. I just wanted to make a record, because
– particularly if you find that he’s not totally credible. That – I was wanting
to call a witness to buttress up the credibility. (INAUDIBLE).
See Transcript at 100-101. A vocational expert was then called to testify. At the
conclusion of the vocational expert’s testimony, the following exchange occurred
between the ALJ and Fraser’s attorney:
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ALJ: Okay, all right. Any follow up on anything, or anything further
before we close?
ATTY: No, Your Honor. I’ll try to get – I’ve already made my record
on that. No, Your Honor.
ALJ: Okay, all right. Mr. Fraser, what I’m going to do, I’m going to
go back and look at everything, taking into consideration your testimony.
Once I make a decision I’ll put the decision in writing, and I’ll mail you a
copy and mail your representative a copy. Ms. McKinnon, were you going
to have the wife put in a witness statement that I need to look for?
ATTY: I can try, I’m not sure she’ll be willing, and I’m not sure it
will be adequate. But I will – I will ask her, Your Honor.
ALJ: Okay. Well, I’ll – what I’ll do, I won’t hold the record open,
but by the time I get the decision from editing – ready for me to edit,
before I sign it, I will look to see if it’s there.
ATTY: Yes, Your Honor.
ALJ: And if [it] is there, I’ll take it into consideration. If it’s not
there, I’m not going to wait on it. Okay, anything – anything further before
we close?
ATTY: No, Your Honor.
See Transcript at 115-116.
On August 7, 2017, or eleven days after the conclusion of the administrative
hearing, the ALJ issued a decision in which she found that Fraser has not been under a
disability since June 17, 2016, the day he filed his application. See Transcript at 9-24.
In the decision, the ALJ framed the scope of the relevant evidence as follows:
... There are prior applications, the last of which is currently on appeal
at the federal court level. I am not re-evaluating any of the overlapping
evidence from the prior adjudicated time period, and there are many
records associated with that prior claim as well as the claim before it.
Those records should not have been submitted or exhibited, but since they
were, I am reviewing them for historical purposes only. ... Any prior
adjudicated time period opinion evidence is not evaluated in this decision.
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See Transcript at 9. At step two of the sequential evaluation process, the ALJ found
that Fraser has severe impairments that include lumbar degenerative disc disease,
borderline intellectual functioning, a generalized anxiety disorder, and a bipolar
disorder in partial remission. The ALJ assessed Fraser’s residual functional capacity and
found that he is capable of performing light work albeit with a number of mental and
physical limitations. In making the assessment, the ALJ noted the following:
... I have considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the requirements of 20
CFR 416.929 and SSR 96-4p. I have also considered opinion evidence in
accordance with the requirements of 20 CFR 416.927 and SSRs 96-2p, 965p, 96-6p, and 06-3p.
In considering the claimant’s symptoms, I must follow a two-step process
in which it must first be determined whether there is an underlying
medically determinable physical or mental impairment(s)—i.e., an
impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques—that could reasonably be expected to
produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, I must evaluate the intensity, persistence, and limiting
effects of the claimant’s symptoms to determine the extent to which they
limit the claimant’s functional limitations. For this purpose, whenever
statements about the intensity, persistence, or functionally limiting
effects of pain or other symptoms are not substantiated by objective
medical evidence, I must consider other evidence in the record to
determine if the claimant’s symptoms limit the ability to do work-related
activities.
See Transcript at 15. The ALJ eventually discounted Fraser’s statements concerning the
intensity, persistence, and limiting effects of his impairments because the statements
were not “entirely consistent with the medical evidence and other evidence in the
record for the reasons explained in [the] decision.” See Transcript at 16.
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Fraser filed a request for review with the Appeals Council. He maintained, in
part, that the ALJ failed to develop the evidence. He did not, though, offer his wife’s
statement for the Appeals Council’s consideration. The request for review was denied,
and this case followed.
The ALJ is required to assess the claimant’s residual functional capacity, which
is a determination 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). As a part of the assessment,
the ALJ should consider the statements of lay witnesses, particularly when the ALJ must
evaluate a claimant’s subjective complaints. See Willcockson v. Astrue, 540 F.3d 878
(8th Cir. 2008) (statements of lay persons regarding claimant’s condition must be
considered when evaluating her subjective complaints of pain).2

This requirement is true even after the Commissioner adopted Social Security Ruling 16-3p
effective March 28, 2016. The Ruling eliminates the use of the word “credibility” in making disability
determinations and requires the ALJ to consider the following factors in evaluating the intensity,
persistence, and limiting effects of a claimant's symptoms: (1) daily activities; (2) the location, duration,
frequency, and intensity of pain or other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or
has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the claimant
receives or has received for relief of pain or other symptoms; (6) any measures other than treatment a
claimant uses or has used to relieve pain or other symptoms; and (7) any other factors concerning a
claimant’s functional limitations and restrictions due to pain or other symptoms. The Ruling also
provides, in part, the following:

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2. Consideration of Other Evidence.
If we cannot make a disability determination or decision that is fully favorable based
solely on objective medical evidence, then we carefully consider other evidence in the
record in reaching a conclusion about the intensity, persistence, and limiting effects of
an individual’s symptoms. ...
...
c. Non-Medical Sources.
Other sources may provide information from which we may draw inferences and
conclusions about an individual’s statements that would be helpful to us in assessing the
intensity, persistence, and limiting effects of symptoms. Examples of such sources
include public and private agencies, other practitioners, educational personnel, nonmedical sources such as family and friends, and agency personnel. ... 

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The ALJ also has an obligation to fully develop the record. See Battles v. Shalala,
36 F.3d 43 (8th Cir. 1994). There is no bright line test for determining whether the ALJ
fully developed the record; the determination is made on a case by case basis. See Id.
It involves examining whether the record contains sufficient information for the ALJ to
have made an informed decision. See Pratt v. Asture, 372 Fed.Appx. 681 (8th Cir. 2010).
The undersigned is not prepared to find that the ALJ fully developed the record.
As will be more fully developed below, the ALJ erred when she balked at the request
to hear from Fraser’s wife during the administrative hearing and thereafter failed to
give her a reasonable opportunity to submit a written statement.
Fraser represented that he is disabled and unable to work because of a bipolar
disorder, an obsessive compulsive disorder, gout, and back problems. The impairments,
like many impairments, have a subjective component, and the pain or work-related
limitations they cause can be difficult to quantify. It is therefore understandable why
the statement of a lay witness, like Fraser’s wife, is of some relevance in determining
the severity of pain or the work-related limitations caused by the impairments.
Fraser testified during the administrative hearing that his wife knew about his
condition and, in fact, knew more about it than the medical professionals at Daysprings.
Although his assertion is debatable, it is clear that she knew, or he believed she knew,
much about his condition. Fraser thereafter affirmed his attorney’s representation that
it was “real important” Fraser’s wife testify. Although it is debatable whether it was
indeed “real important” for Fraser’s wife to testify, she should have been allowed to
testify, particularly in light of the fact that Fraser had the burden of proving his residual
functional capacity. See Masterson v. Barnhart, 363 F.3d 731 (8th Cir. 2004).

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Notwithstanding the foregoing, it is possible to find that the ALJ did not bar
Fraser’s wife from testifying. The ALJ simply stated that “when somebody is very
articulate and is able to testify, I don’t find it necessary to hear from anybody else.”
The undersigned, though, can find no authority to support such a proposition, and the
Commissioner has cited none.
The ALJ then stated that she would consider a written statement from Fraser’s
wife. Had Fraser’s wife been accorded a reasonable opportunity to submit a statement,
a remand likely would not be warranted. The problem in this instance, though, is that
Fraser’s wife was never given a reasonable opportunity to submit a statement. The ALJ
told Fraser that the record would not be held open for the submission of a statement.
Instead, the ALJ stated that she would only consider the statement if it were submitted
before she signed her decision, whenever that might be. She signed her decision a mere
eleven days after the close of the administrative hearing.3
The ALJ’s failure to consider a lay witness statement does not always result in a
remand. For instance, in Buckner v. Astrue, 646 F.3d 549 (8th Cir. 2016), the ALJ did
not expressly address a written statement from a claimant’s girlfriend. The Court of
Appeals found no reversible error because “the same evidence that the ALJ referred to
in discrediting Buckner’s claims also discredits the girlfriend’s claims.” See Id. at 560.
Buckner is not controlling here, though. In Buckner, the girlfriend’s statement was a
part of the record. The statement from Fraser’s wife is not a part of the record in this
case, and the undersigned has no idea what she might represent in her statement.

Fraser’s attorney stated that Fraser’s wife might not be willing to sign a written statement, and
it might not be adequate. The undersigned has no idea why Fraser’s wife might not be willing to sign a
statement or why it might not be adequate.

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It is entirely possible that a statement from Fraser’s wife will not be accorded
much weight and will not change the result in this case. Nevertheless, Fraser should be
accorded a reasonable opportunity to submit his wife’s statement. The opportunity to
do so is of particular importance in this instance for two reasons. First, the ALJ could
and did limit the scope of the relevant evidence and refuse to re-evaluate the evidence
from the “prior adjudicated time period[s].” Second, the result in this case hinged, in
part, on the evaluation of Fraser’s subjective complaints.
Accordingly, the undersigned finds that the ALJ did not fully develop the record.
It is therefore recommended that the Commissioner’s decision be reversed, and this
case be remanded pursuant to “sentence four” as that phrase is defined in 42 U.S.C.
405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Upon remand, the ALJ should reassess Fraser’s residual functional capacity and accord him a reasonable opportunity to
submit any lay witness statements. Judgment should be entered for Fraser.
DATED this 23rd day of April, 2019.

________________________________________
UNITED STATES MAGISTRATE JUDGE

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