Miner v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 7, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MISTY DAWN MINER
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Plaintiff, Misty Dawn Miner, 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 her claim for supplemental security income (SSI) benefits under the
provisions of Title II 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)
Plaintiff protectively filed her application for SSI on November 26, 2007, alleging an
inability to work since July 31, 2006, due to irritable bowel syndrome, depression, dizziness and
severe pain on her left side. (Tr. 113, 143). An administrative hearing was held on May 12,
2009, at which Plaintiff appeared with her attorney and testified. (Tr. 22-49).
By written decision dated October 26, 2009, the ALJ found that although Plaintiff had
the following medical impairments - irritable bowel syndrome and cysts - Plaintiff did not have
an impairment or combination of impairments that had significantly limited the ability to perform
basic work-related activities for twelve consecutive months and therefore, Plaintiff did not have
a severe impairment or combination of impairments. (Tr. 57).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on April 19, 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. 3). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 12, 15).
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. 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 her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her 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 her disability, not simply her 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 her 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 her 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 her residual functional capacity (RFC). See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
In this case, the ALJ determined at step two of the sequential process that Plaintiff was not
disabled during the relevant review period because she had no severe impairment or combination
of impairments that significantly limited her ability to perform basic work activities.
An ALJ may deny benefits at step two of the sequential evaluation only if a claimant’s
medical impairments are so slight that it is unlikely he or she would be found to be disabled even
if their age, education, and experience were taken into account. Bowen v. Yuckert, 482 U.S. 137,
153 (1987). “A majority of the Supreme Court has adopted what has been referred to as a ‘de
minimis standard’ with regard to the step two severity standard.” Hudson v. Bowen, 870 F.2d
1392, 1395 (8th Cir. 1989); Funderburg v. Bowen 666 F.Supp. 1291 (W.D. Ark. 1987). “Only
those claimants with slight abnormalities that do not significantly limit any ‘basic work activity’
can be denied benefits without undertaking the vocational analysis.” Bowen, 482 U.S. at 158.
As early as 2005, Plaintiff suffered from abdominal pain, and continued to suffer from
abdominal pain through August of 2009. (Tr.194, 208-209, 220, 233, 244-245, 249-252, 263, 265,
267, 273-274, 297, 308-311, 313, 398-399, 404, 449-457, 522, 520, 526). She has also taken
various medications for pain. (Tr. 41, 118, 184, 209, 406). Plaintiff had reported on January 1,
2007, that her pain was so bad she “can’t stand it.” (Tr. 233). She testified at the May 12, 2009
hearing that her abdominal pain was constant, and in a May 7, 2009 report by Dr. Linda Ball,
Plaintiff stated that she had not been able to lift over ten pounds due to exacerbation of her pain,
and was unable to sit still for any significant period of time. (Tr. 398). Plaintiff was attending
college to become a teacher, but when she began her teacher observation, she experienced a great
deal of pain, and realized that she would not be able to teach.
The Appeals Council entered an order to include medical records that dated from July 3,
2009 to February 3, 2010. (Tr. 4). It does not appear that these records were before the ALJ when
she entered her decision,1 and they reflect that Plaintiff continued to suffer from abdominal pain
during that period of time. When the Appeals Council has considered material new evidence and
nonetheless declined review, the ALJ's decision becomes the final action of the Commissioner.
The Court then has no jurisdiction to review the Appeals Council's action because it is a nonfinal
The Court notes that if the ALJ did have the records before her which pre-dated her decision, i.e., those dated
July 3, 2009 to October 26, 2009, she did not discuss them. In fact, very little of the medical evidence was
discussed in the ALJ’s decision.
agency action. See Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992). At this point, the
Court’s 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
the Court 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 submitted evidence.
The new evidence submitted to the Appeals Council reflects the following. On August 4,
2009, Dr. Donna Lukasek, who performed Plaintiff’s hysterectomy in 2006, performed a
laparotomy, and found that Plaintiff had multiple adhesions of the omentum2 and the bowel to the
anterior abdominal wall and also some adhesions to the right tube and ovary. Her impression was:
1. Multicystic right ovary; 2. Chronic pain syndrome; and 3. Tobacco abuse. (Tr. 529-530, 533534). On January 8, 2010, Plaintiff reported that she fell in December and heard her knee pop, and
had been in pain and was unable to fully straighten out her knee. Dr. William Sherrill
recommended a MRI, and on January 10, 2010, the MRI revealed moderate knee joint effusion
with a questionable plica in the superior joint space, a small Baker’s cyst, and fluid extending
Omentum - A fold of peritoneum extending from the stomach to adjacent organs in the abdominal cavity.
Dorland’s Illustrated Medical Dictionary 1339 (31st Ed. 2007).
along the medial head of the gastrocnemius muscle inferior to the Baker’s cyst, which might be
secondary to rupture of the Baker’s cyst. (Tr. 510). On February 3, 2010, a CT scan of Plaintiff’s
chest revealed a single non-calcified pleural based pulmonary nodule in the right lung base. (Tr.
The fact that Plaintiff has continued to suffer from abdominal pain of some sort since 2005,
coupled with the fact that Dr. Lukasek, her surgeon, diagnosed her with multicystic right ovary and
chronic pain syndrome in August of 2009, leads the Court to believe that had the ALJ had this
medical evidence before her when making her decision on this case, the outcome may very well
have been different in that she might have found Plaintiff suffered from a severe impairment.
Accordingly, the Court believes that remand is necessary to allow the ALJ to consider this new and
material evidence and to complete the sequential step process.
Accordingly, 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).
DATED this 7th day of June, 2011.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
The Court recognizes that the finding of a lung nodule is not necessarily relevant to Plaintiff’s allegations of
abdominal pain. However, upon remand, the ALJ should nevertheless address this finding as well as her knee
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