Lee v. Social Security Administration

Filing 20

MEMORANDUM OPINION AND ORDER : The Commissioner's decision is reversed and remanded for action consistent with this opinion. This is a "sentence four" remand. Signed by Magistrate Judge Beth Deere on 6/10/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION J A M E S D. LEE V. CASE NO. 5:08CV00170 BD PLAINTIFF

M I C H A E L J. ASTRUE, C o m m is s io n e r , Social Security Administration M E M O R A N D U M OPINION AND ORDER

DEFENDANT

P la in tif f James D. Lee has appealed the final decision of the Commissioner of the S o c ia l Security Administration (the "Commissioner") denying him a period of disability a n d disability insurance benefits under Title II, and denying his claim for Supplemental S e c u rity 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 a n d remanded for action consistent with the opinion in this case. I. Procedural History: P la in tif f filed an application for disability and disability insurance benefits under T itle II on January 6, 2005. On the same day, Plaintiff also filed an application for SSI b e n e f its . In both applications, Plaintiff alleges he became disabled on September 17, 2 0 0 4 , as a result of cervical spondylosis, right shoulder and neck pain, depression, and p o s t traumatic stress disorder.

The ALJ held a hearing on August 29, 2006, and Plaintiff appeared with his nona tto rn e y representative Willis White. The ALJ received testimony from Plaintiff's wife, B re n d a Lee, and vocational expert Mack Welch ("VE"). On February 14, 2007, the ALJ is su e d a decision denying Plaintiff benefits. (Tr. 14-22) After the administrative Appeals C o u n c il denied Plaintiff's request for review, Plaintiff filed the current Complaint for R e v ie w of Decision (docket entry #2) on June 9, 2008. II. B ackground: A t the time of the hearing, Plaintiff was a 44-year-old male with a high school e d u c a tio n . He had past relevant work experience as a stocker, forklift driver, and m a in te n a n c e worker. Plaintiff was 6 feet tall and weighed 205 pounds. He had one m in o r child. Plaintiff served in the Army from 1998 until April 8, 2004. Sometime in February o f 2003, Plaintiff was involved in a motor vehicle accident. As a result of the accident, P la in tif f suffered injuries to his neck and shoulder. (Tr. 376) He was medically d is c h a rg e d from the Army on April 8, 2004, due to his injuries. According to Plaintiff, he w a s discharged because he could no longer wear certain parts of his Army uniform w ith o u t experiencing pain. (Tr. 379) Plaintiff began receiving disability benefits from the United States Department of V e te ra n s Affairs ("VA") a few months after his medical discharge. (Tr. 376) At the time o f the hearing, Plaintiff had a 60% disability rating from the VA. (Tr. 377) Two months

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after the hearing, on October 28, 2006, the VA increased Plaintiff's disability rating. (Tr. 3 6 7 -3 7 1 ) In addition to Plaintiff's physical impairments, he received disability from the VA f o r depression. (Tr. 367-369) Plaintiff attended group and individual counseling sessions a n d regularly took medication for depression and post traumatic stress disorder. III. F in d in g s of the ALJ: The ALJ followed the required five-step sequential analysis set out in the social s e c u rity regulations, 20 C.F.R. §§ 404.1520 and 416.920, finding: (1) that Plaintiff had n o t engaged in substantial gainful activity since the onset of his alleged disability; (2) that h e suffered from "severe impairments" as that term is interpreted for purposes of the S o c ia l Security Regulations; (3) that Plaintiff did not have an impairment, or combination o f impairments, that rose to the level of severity for any impairment listed in Appendix 1 to Subpart P, Regulation No. 4; (4) that he was unable to perform any past relevant work; b u t (5) that Plaintiff retained the residual functional capacity ("RFC") to perform a s ig n if ic a n t range of sedentary work1 on a sustained basis. At step five, the ALJ found that a significant number of jobs existed in the economy which Plaintiff was capable of p e rf o rm in g .

"Sedentary work" is defined as work involving "lifting no more than 10 pounds a t a time and occasionally lifting or carrying articles like docket files, ledgers, and small to o ls ." 20 C.F.R. § 404.1567(a). 3

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Plaintiff contends that the findings of the ALJ are not supported by substantial e v id e n c e and contain errors of law based on the following: (1) the ALJ erred in failing to p ro p e rly evaluate the medical evidence under 20 C.F.R. § 404.1527; and (2) the ALJ f a ile d to properly evaluate Plaintiff's disability rating from the VA. T h e Defendant argues that the ALJ's decision is supported by substantial evidence b e c a u s e : (1) the ALJ properly assessed Plaintiff's RFC with a VE's assistance; and (2) the A L J was not bound by Plaintiff's VA disability rating. IV . L e g a l Analysis: In reviewing the ALJ's decision, this Court must determine whether there is s u b s ta n tia l evidence in the administrative record to support the Commissioner's decision. 42 U.S.C. § 405(g). This review function is limited, and the decision of the ALJ must be a f f irm e d "if the record contains substantial evidence to support it." Edwards v. Barnhart, 3 1 4 F.3d 964, 966 (8th Cir. 2003). "Substantial evidence is less than a preponderance but e n o u g h so that a reasonable mind could find it adequate to support the decision." Id. Evidence that both supports and detracts from the ALJ's decision must be considered, but th e decision cannot be reversed "merely because there exists substantial evidence s u p p o rtin g a different outcome." Id. "Rather, if, after reviewing the record, . . . it is p o s s ib le to draw two inconsistent positions from the evidence and one of those positions re p re se n ts the [ALJ's] findings, we must affirm the decision of the [ALJ]." Young v. A p fe l, 221 F.3d 1065, 1068 (8th Cir. 2000) (citations and quotations omitted). Thus, the

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Court's function on review is to determine whether the Commissioner's decision is s u p p o rte d by substantial evidence on the record as a whole and whether it is based on le g a l error. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also, 42 U.S.C. § 405(g). A. P la in tiff's Residual Functional Capacity:

T h e ALJ bears the initial responsibility for assessing Plaintiff's RFC. Anderson v. S h a la la , 51 F.3d 777, 779 (8th Cir. 1995). Plaintiff's RFC is what he can do despite his lim ita tio n s . 20 C.F.R. § 404.1545 (2001)(2003). In determining Plaintiff's RFC, the ALJ h a s a duty to establish, by competent medical evidence, the physical and mental activity th a t Plaintiff can perform in a work setting, after giving appropriate consideration to all of h is impairments. Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996). The ALJ must d e te rm in e the Plaintiff's RFC based on all relevant evidence, including medical records, o b s e rv a tio n s of treating physicians and others, and Plaintiff's own descriptions of his lim ita tio n s . Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003); Pearsall v. M a s s a n a r i, 274 F.3d 1211, 1217 (8th Cir. 2001). The ALJ determined that Plaintiff maintained the RFC to perform a significant ra n g e of sedentary work on a sustained basis. The ALJ determined that Plaintiff could p h ys ic a lly lift and carry objects that weighed no more than 5 pounds occasionally, could s ta n d and walk for no more than two hours in an 8-hour workday, could sit for no more th a n six hours in an 8-hour workday, could not climb or crawl, could occasionally

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balance, stoop, crouch, and kneel, could reach, handle, and feel objects without s ig n if ic a n t limitation, could not reach overhead, could push and pull objects up to five p o u n d s, could see, hear, and speak without significant impairment, and could not work a ro u n d heights or moving machinery. (Tr. 17) The record contains substantial evidence supporting the ALJ's physical RFC f in d in g s . The ALJ failed to discuss Plaintiff's medication usage in detail. It appears, h o w e v e r, that the ALJ properly took Plaintiff's medication use into account when the ALJ f o u n d Plaintiff could not work around heights or moving machinery. Regarding Plaintiff's mental RFC, the ALJ determined that Plaintiff had severe im p a irm e n ts of depression and post traumatic stress disorder. (Tr. 16) Despite this f in d in g , it appears the ALJ did not find any mental limitation in Plaintiff's RFC. (Tr. 1720) The record shows that Plaintiff consistently used medication and attended therapy f o r his depression and post traumatic stress disorder. It appears Plaintiff remained re la tiv e ly stable despite his conditions. That is not to say his depression and post tra u m a tic stress disorder were not limiting. On March 21, 2005, Disability Determination Dr. Kathryn M. Gale conducted a P s yc h ia tric Review Technique and determined that Plaintiff suffered from affective and a n x ie ty-re la te d disorders. (Tr. 216-229) Dr. Gale noted Plaintiff's depression and a n x ie ty and found Plaintiff had recurrent and intrusive recollections of a traumatic

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experiences which caused marked distress. (Tr. 219-221) Dr. Gale determined that these d is o rd e rs caused Plaintiff to suffer mild restriction in his daily activities, moderate d if f ic u ltie s in maintaining social functioning, and moderate difficulties in maintaining c o n c e n tra tio n , persistence, or pace. (Tr. 226) On March 21, 2005, Plaintiff also underwent a mental RFC Assessment by Dr. G a le . (Tr 235-238) Dr. Gale found that Plaintiff had moderate limitations in his ability to m a in ta in attention and concentration for extended periods, to work in proximity to others w ith o u t being distracted by them, and to interact appropriately with the general public. (Tr. 235-236) Plaintiff also had moderate limitations in his ability to accept, understand, re m e m b e r, and carry out detailed instructions. Ultimately, Dr. Gale determined that P la in tif f was able to perform work where interpersonal contact is incidental to work p e rf o rm e d , e.g. assembly work; complexity of tasks is learned and performed by rote, few v a ria b le s , little judgment; and the supervision required is simple, direct, and concrete. (Tr. 237) On May 24, 2005, Disability Determination Dr. Brad Williams reviewed all the e v id e n c e in the file and agreed with Dr. Gale's findings. (Tr. 237) A s noted above, the ALJ found that Plaintiff had severe impairments of depression a n d post traumatic stress disorder. (Tr. 16) A "severe" impairment is one that s ig n if ic a n tly limits a plaintiff's physical or mental ability to do basic work activities. Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997); Browning v. Sullivan, 958 F.2d 8 1 7 , 821 (8th Cir. 1992). The ALJ specifically noted that these impairments caused

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significant limitations in Plaintiff's ability to perform basic work activities. (Tr. 16) The A L J , however, failed to account for these limitations in the RFC findings. T h e ALJ evaluated Plaintiff's mental impairments and noted that Plaintiff did not h a v e marked limitation in social functioning or ability to maintain concentration. (Tr. 19) The ALJ also found that Plaintiff's mental symptoms were adequately controlled with m e d ic a tio n and psycho-social support. (Tr. 20) The ALJ then found that Plaintiff's s ym p to m s would not "preclude the performance of light work, with the additional lim ita tio n s previously described." (Tr. 20) This finding directly contradicts the ALJ's p re v io u s finding that Plaintiff was limited to a significant range of sedentary work. (Tr. 1 7 ) In addition to this contradiction, the "additional limitations previously described" f a ile d to include any limitations from Plaintiff's depression or post traumatic stress d is o rd e r, even though the ALJ found these impairments "severe." By definition, a severe im p a irm e n t is significantly limiting. (Tr. 17-20) This was error. P la in tif f met his burden of proving that his mental impairments limited his workre la te d abilities, and the ALJ erred in failing to account for these limitations. Two s e p a ra te Disability Determination doctors articulated work-related limitations caused by P la in tif f 's mental impairments. (Tr. 237) The ALJ recognized these impairments as s e v e re , but failed to account for them or address the Disability Determination doctors' o p in io n s .

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B.

V o c a tio n a l Expert Hypothetical:

W h e n the ALJ determined that Plaintiff could not perform his past relevant work, th e burden shifted to the Commissioner to show that significant number of jobs existed in th e economy which Plaintiff was capable of performing. See Pate-Fires v. Astrue, 564 F .3 d 935, 942 (8th Cir. 2009) (burden shifts to Commissioner at step five of the s e q u e n tia l analysis). The Commissioner may meet this burden by seeking testimony from a VE. This testimony comes in response to a hypothetical question presented by the ALJ. A hypothetical question posed to a VE is sufficient if it sets forth the impairments s u p p o rte d by substantial evidence in the record and accepted as true by the ALJ. Hunt v. M a s s a n a r i, 250 F.3d 622, 625 (8th Cir. 2001). The hypothetical in this case failed to a c c o u n t for impairments the ALJ found severe. In addition, the hypothetical failed to set f o rth limitations supported by substantial evidence. D u rin g the administrative hearing, the ALJ presented the VE with a hypothetical v o id of any mental impairment related limitations. (Tr. 385-388) Medical records show th a t Plaintiff was diagnosed with mental limitations and was given a Global Assessment o f Functioning (GAF) score of 31 on several occasions.2 (Tr. 83, 112) The ALJ appeared to discount these findings due to Plaintiff's daily activities. (Tr. 19) Daily activities

The Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV), p u b lish e d by the American Psychiatric Association, states that a GAF of 31 to 40 in d ic a te s some impairment in reality testing or communication or major impairment in s e v e ra l areas, such as work or school, family relations, judgment, thinking, or mood. 9

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alone are an insufficient basis to negate medical findings. Two separate Disability D e te rm in a tio n Doctors concluded that Plaintiff was able to perform work where in te rp e rs o n a l contact is incidental to work performed. The ALJ did not include any social in te ra c tio n limitation in the hypothetical presented to the VE. Without this limitation, the V E found that Plaintiff could work as a cashier, a job that requires constant interaction w ith the public. Because the hypothetical was legally insufficient, the VE's testimony re g a rd in g the jobs Plaintiff could perform was incomplete. Accordingly, the C o m m is s io n e r has failed to meet his burden of showing that a significant number of jobs existed in the economy which Plaintiff was capable of performing. O n remand, the ALJ should account for Plaintiff's mental limitations, and, if n e c e s s a ry, present a hypothetical that encompasses Plaintiff's mental limitations. Through this hypothetical, the ALJ may determine if there are a significant number of jo b s in the economy which Plaintiff is capable of performing. V. Conclusion:

A f te r consideration of the record as a whole, the Court finds that the decision of th e Commissioner is not supported by substantial evidence and that the case should be re m a n d e d . Accordingly, the Commissioner's decision is reversed and remanded for a c tio n consistent with this opinion. This is a "sentence four" remand within the meaning o f 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991).

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IT IS SO ORDERED this 10th day of June, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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