Washington v. Social Security Administration
MEMORANDUM OPINION AND ORDER: The Commissioner's decision is REMANDED for action consistent with this opinion. This is a "sentence four" remanded within the meaning of 42 U.S.C. § 405(g). Signed by Magistrate Judge Joe J. Volpe on 8/11/2014. (srw)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff, Angela Washington, appeals the final decision of the Commissioner of the Social
Security Administration (the “Commissioner”) denying her claims for supplemental security income
(“SSI”) benefits under Title XVI of the Social Security Act (the “Act”). For reasons set out below,
the Commissioner’s decision is REMANDED for action consistent with this opinion.
On July 28, 2010, Ms. Washington protectively filed for SSI benefits due to high blood
pressure, ADHD, dizzy spells, arthritis, bad knees, and hand, back, and leg pain. (Tr. 144, 153, 155)
Ms. Washington’s claims were denied initially and upon reconsideration. At her request, an
Administrative Law Judge (“ALJ”) held a hearing on April 18, 2011, where Ms. Washington
appeared with her lawyer. (Tr. 27) At the hearing, the ALJ heard testimony from Ms. Washington
and a vocational experts (“VE”). (Tr. 28-41)
The ALJ issued a decision on May 19, 2011, finding that Ms. Washington was not disabled
under the Act. (Tr. 12-22) The Appeals Council denied Ms. Washington’s request for review,
making the ALJ’s decision the Commissioner’s final decision. (Tr. 1-3)
Ms. Washington, who was 27 years old at the time of the hearing, has a high school
education. (Tr. 31) She has past relevant work as a hotel housekeeper. (Tr. 38)
DECISION OF THE ADMINISTRATIVE LAW JUDGE1
The ALJ found that Ms. Washington had not engaged in substantial gainful activity since
July 28, 2010 and she had the following severe impairments: hypertension, bilateral knee and back
problems, and ADHD. (Tr. 14) However, the ALJ found that Ms. Washington 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. Washington has the residual functional capacity (“RFC”) to
perform light work, but she would be “precluded from climbing ropes, ladders, scaffolds, and
crawling, and contact with vibrating machinery and limited to simple repetitive tasks, requiring only
incidental contact with coworkers, supervisors, and the general public.” (Tr. 17) The VE testified
that the jobs available with these limitations were hand packer, labeling machine operator, and small
products assembler. (Tr. 39-40)
After considering the VE’s testimony, the ALJ determined that Ms. Washington could
perform a significant number of jobs existing in the national economy, and found that Ms.
Washington was not disabled.
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) (2005).
20 C.F.R. §§ 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. Boettcher v. Astrue, 652 F.3d
860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g). Substantial evidence is “less than a preponderance,
but sufficient for reasonable minds to find it adequate to support the decision.” Id. (citing Guilliams
v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)).
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.” Id. (citing Pelkey
v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).
Ms. Washington’s Arguments for Reversal
Ms. Washington asserts that the Commissioner’s decision should be reversed because it is
not supported by substantial evidence. Specifically, Ms. Washington contends that the ALJ (1) failed
to acknowledge or evaluate Ms. Washington’s subjective complaints; (2) failed to order a
consultative exam; and (3) did not include mental limitations in RFC assessment. (Doc. No. 13)
Ms. Washington asserts that the ALJ failed to acknowledge or evaluate her subjective
complaints. Specifically, Ms. Washington argues that “a review of [the ALJ’s] decision reveals that
he failed to even mention the Plaintiff’s testimony as required.” Yet, the following phrase appears
at the bottom of page seven of the ALJ’s opinion: “The claimant testified . . . .” (Tr. 18)
Accordingly, Ms. Washington’s claim is without merit. Furthermore, the ALJ considered and
assessed the Polaski factors such as Ms. Washington’s daily activities,3 her non-compliance with
treatment,4 and the lack of objective evidence to support the severity which she alleged.
Ms. Washington contends that the ALJ erred by relying on “the opinion of a non-examining
physician which was not based upon the full record in this case” and by not obtaining an opinion
from a medical expert regarding her MRI results. (Doc. No. 13)
According to her Social Security form and hearing testimony, Ms. Washington first noticed
her back problems in August 2010. (Tr. 31, 144) On October 13, 2010, Dr. Bill Payne, a nonexamining source, performed a case analysis and concluded that Ms. Washington’s “[p]hysical
impairments are non severe.” (Tr. 303) However, a March 30, 2011, MRI revealed “L5-S1 right
paracentral broad based HNP resulting in posterior displacement of the right S1 nerve root and
evidence of acute annular tear, a potential source of acute localized low back pain.” (Tr. 354) At
the hearing, Ms. Washington testified that despite prescription drugs and therapy, her back pain
worsened, which led to getting the MRI. (Tr. 31) Ms. Washington advised the ALJ that she was
scheduled to start steroid shots in a week or two. (Tr. 33) She also reported tingling pain radiating
down her right side, which was the same thing that led her to the doctor on March 29, 2011. Despite
this evidence, the ALJ gave Dr. Payne’s opinion “significant weight.” (Tr. 16, 20). Yet Dr. Payne
was unaware of both the MRI and progression of Ms. Washington’s back pain, and the ALJ’s
opinion mentions the MRI only in passing. (Tr. 16) Accordingly, this case must be remanded to
the Commissioner to develop the record regarding Ms. Washington’s back pain.
She manages “personal care, and does some household chores, cooking, laundry, and washes
dishes . . . [and] drives once a week.” (Tr. 19, 30, 37)
She “dropped out of treatment” with Delta Counseling. (Tr. 16, 223)
Ms. Washington contends that the ALJ erred by not incorporating all of her mental
limitations into the RFC. (Doc. No. 13) She points out that the ALJ failed to incorporate Dr.
Rankin’s mental RFC limitation, “The claimant is able to perform work where interpersonal contact
is incidental to work performed, e.g. assembly work; complexity of tasks is learned and performed
by rote, few variables, little judgment; supervision required is simple, direct and concrete
It appears the ALJ addressed Ms. Washington’s mental limitations when he determined that
she should be “limited to simple repetitive tasks, requiring only incidental contact with coworkers,
supervisors, and the general public.” However, since this case is being remanded to further develop
the record regarding Ms. Washington’s back pain, the RFC may have to be adjusted. That being so,
the Commissioner should go ahead and clear up this issue as well.
After consideration of the record as a whole, the Court concludes that the ALJ erred by
failing to develop the record regarding Ms. Washington’s back problems and MRI results. The
mental limitations in the RFC finding should also be resolved. Therefore, the Commissioner’s
decision is REMANDED for action consistent with this opinion. This is a “sentence four” remand
within the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991).
IT IS SO ORDERED this 11th day of August, 2014.
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE
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