Young v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable Erin L. Setser on May 2, 2011. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DANE T. YOUNG
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Plaintiff, Dane T. Young, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claim for supplemental security income (SSI) benefits under the
provisions of Title XVI of the Social Security Act (Act). In this judicial review, the Court must
determine whether there is substantial evidence in the administrative record to support the
Commissioner’s decision. See 42 U.S.C. § 405(g).
I. Procedural Background:
Plaintiff protectively filed his application for SSI on October 5, 2007, alleging an inability
to work since November 4, 2006, due to seizure disorder. (Tr. 113, 117 ). An administrative
hearing was held on March 23, 2009, at which Plaintiff appeared with counsel, and he and his
mother testified. (Tr.7-45).
By written decision dated September 25, 2009, the Administrative Law Judge (ALJ)
found Plaintiff had an impairment or combination of impairments that were severe - epilepsy,
attention deficit disorder, and intermittent explosive disorder.1 (Tr. 53). However, after
reviewing all of the evidence presented, he determined that Plaintiff’s impairments did not meet
or equal the level of severity of any impairment listed in the Listing of Impairments found in
Appendix I, Subpart P, Regulation No. 4. (Tr. 53 ). The ALJ found that Plaintiff had no
exertional limitations, and could have no exposure to hazards (such as unprotected heights or
heavy machinery), could not drive, and could perform unskilled work where interpersonal
contact was incidental to the work performed. (Tr. 55). With the help of a vocational expert
(VE), the ALJ determined that Plaintiff could perform work as a cashier II, sales clerk, and
housekeeper. (Tr. 60).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
received and considered new evidence, and denied the request for review on March 23, 2010.
(Tr. 1-3). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned
pursuant to the consent of the parties. (Doc. 7). Both parties have filed appeal briefs, and the
case is now ready for decision. (Docs. 11, 14).
This Court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner’s decision. The ALJ’s decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.
Intermittent Explosive Disorder - The essential feature of Intermittent Explosive Disorder is the occurrence of
discrete episodes of failure to resist aggressive impulses that result in serious assaultive acts or destruction of
property. Diagnostic and Statistical Manual of Mental Disorders § 312.34 (4th Ed. 2000).
3d 964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports
the Commissioner’s decision, the Court may not reverse it simply because substantial evidence
exists in the record that would have supported a contrary outcome, or because the Court would
have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In
other words, if after reviewing the record, it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the findings of the ALJ, the decision of the
ALJ must be affirmed. Young v. Apfel, 221 F. 3d 1065, 1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F. 3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §§423(d)(1)(A),
1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§423(d)(3),
1382(3)(D). A Plaintiff must show that his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in substantial
gainful activity since filing his claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. §416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
in light of his residual functional capacity (RFC). See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
When the Appeals Council has considered material new evidence and nonetheless
declined review, the ALJ's decision becomes the final action of the Commissioner. We then
have no jurisdiction to review the Appeals Council's action because it is a nonfinal agency action.
See Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992). At this point, our task is only to
decide whether the ALJ's decision is supported by substantial evidence in the record as a whole,
including the new evidence made part of the record by the Appeals Council that was not before
the ALJ. As the United States Court of Appeals for the Eighth Circuit has noted, "this [is] a
peculiar task for a reviewing court." Riley v. Shalala, 18 F.3d 619, 622 (8th Cir.1994). However,
once it is clear that the Appeals Council considered the new evidence, then we must factor in the
evidence and determine whether the ALJ's decision is still supported by substantial evidence.
This requires the Court to speculate on how the ALJ would have weighed the newly submitted
evidence had it been available at the initial hearing. Flynn v. Chater, 107 F.3d 617, 621 (8th
Cir.1997). Thus, the Court has endeavored to perform this function with respect to the newly
In his opinion, the ALJ concluded that the impairment of epilepsy did not meet or equal
the requirements of 20 C.F.R.404, Subpart P, Appendix 1, Listing 11.00, and more specifically
11.02. (Tr. 53). He stated that in Plaintiff’s case, the criteria could be applied only if the
impairment persisted despite the fact that the individual is following prescribed anti-epileptic
treatment. The ALJ found that since the record did not reflect adherence to prescribed antiepileptic therapy, the criteria could not be applied.
On March 23, 2010, after the ALJ issued his unfavorable decision, the Appeals Council
received additional evidence, which consisted of records from Mercy Northside Clinic, dating
from April 29, 2009, to July 6, 2009. In the record dated April 29, 2009, James Saunders, P.A.
noted that Plaintiff had been compliant with the Dilantin, but had been having “two seizures per
month still.” (Tr. 391). In a record dated July 6, 2009, after Plaintiff had begun taking Lamictal,
James Saunders, P.A., noted that Plaintiff had a couple of “early” episodes that “never
developed into a seizure” and that he had not had a full seizure for a couple of months.
The Court believes that these more recent records indicate that Plaintiff’s epilepsy might
persist despite the fact that he is following prescribed anti-epileptic treatment. The ALJ
therefore, might have reached a different conclusion had the newly submitted evidence been
available at the initial hearing. Accordingly, the Court finds it necessary to remand this matter
for the ALJ to re-evaluate his decision based upon the records that were presented to the Appeals
Council, but not considered by the ALJ. In addition, upon remand, the Court suggests that the
ALJ also obtain a mental RFC assessment from an examining neurologist.
Based upon the foregoing, the Court concludes that the ALJ’s decision is not supported
by substantial evidence, and therefore, the denial of benefits to the Plaintiff should be reversed
and this matter should be remanded to the Commissioner for further consideration pursuant to
sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED this 2nd day of May, 2011.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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