Roulston v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION REVERSING AND REMANDING this case to the Commissioner for further consideration pursuant to 42 USC 405(g). Signed by Honorable James R. Marschewski on August 11, 2011. (sh) Modified on 8/11/2011 to add text(sh).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
RANDY LEE ROULSTON

PLAINTIFF

v.

CIVIL NO.

2:10-CV-02134

MICHAEL J. ASTRUE, Commissioner
of Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision
of the Commissioner of Social Security Administration (Commissioner) denying his claim for a
period of disability and disability insurance benefits (DIB) and supplemental security income
(“SSI”) under Title II of the Social Security Act (Act), 42 U.S.C. § 423(d)(1)(A). 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 filed his DIB application on October 22, 2007, claiming disability since October

3, 2007 (Tr. 115-119). The state Disability Determination Services denied Plaintiff’s application
initially and on reconsideration (Tr. 78-80, 83-84). Pursuant to Plaintiff’s request, ALJ Monica
LaPolt conducted a hearing on October 31, 2008, where Plaintiff and a vocational expert testified
(Tr. 29-64).
The ALJ issued an unfavorable decision on July 2, 2009 (Tr. 70-77). The ALJ found that
Plaintiff had severe impairments due to congestive heart failure, coronary artery disease, and
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adjustment disorder with depressed mood (Tr. 72 - Finding 3); Plaintiff did not have an
impairment that met a listing for presumptive disability (Tr. 72 - Finding 4); Plaintiff had the
residual functional capacity to perform a limited range of sedentary work (Tr. 74 - Finding 5);
and there were jobs that exist in significant numbers in the national economy that Plaintiff could
perform (Tr. 76 - Finding 10). As a result, the ALJ found that Plaintiff was not under a disability
at any time through the date of his decision (Tr. 77). The ALJ’s decision became the final
decision of the Commissioner when the Appeals Council denied Plaintiff’s request for review
(Tr. 1-3).
II.

Applicable Law:
This court's role is to determine whether the Commissioner's findings are supported by

substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider
evidence in the record that fairly detracts from that decision.” Id. As long as there is substantial
evidence in the record to support the Commissioner’s decision, the court may not reverse the
decision simply because substantial evidence exists in the record to support a contrary outcome,
or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742,
747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent positions from the
evidence, and one of those positions represents the Secretary’s findings, the court must affirm the
decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden
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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 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)(c). A plaintiff
must show that his disability, not simply his impairment, has lasted for at least twelve
consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. § § 404.1520(a)- (f)(2003).
Only if the final stage is reached does the fact finder consider the plaintiff’s age, education, and
work experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).

III.

Discussion:
The only issue in this case is the Plaintiff’s Residual Functional Capacity. The ALJ

found that the Plaintiff had the residual functional capacity to perform sedentary work as defined

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in 20 CFR 404.1567(a) except that he could only occasionally stoop, crouch, crawl, kneel,
balance, bend, and climb stairs and ramps and that he could not climb ladders, ropes or
scaffolding and that he could only have moderate exposure to airborne irritants and that the
Plaintiff should have no transactional interaction with the public. (T. 74).
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. This includes
medical records, observations of treating physicians and others, and the claimant’s own
descriptions of her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005);
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from
symptoms such as pain are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3). The
United States Court of Appeals for the Eighth Circuit has held that a “claimant’s residual
functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001).
Therefore, an ALJ’s determination concerning a claimant’s RFC must be supported by medical
evidence that addresses the claimant’s ability to function in the workplace.” Lewis v. Barnhart,
353 F.3d 642, 646 (8th Cir. 2003).
The Plaintiff worked for over 23 years for Riverside Furniture Company (T. 134-141) as a
cut off saw operator (T. 58). On October 1, 2007 the Plaintiff went to work for Wal Mart
Associates, Inc. (T. 132) but suffered a heart attack on October 3, 2007 while undergoing
orientation with his new employer. The Plaintiff was initially treated at the Johnson Regional
Medical Center ER (T. 237-245) but was transferred to the Arkansas Heart Hospital where a

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cardiac catheteratization was performed which showed an ejection fraction of 50% 1with apical
inferior akinesis (paralysis) . The Plaintiff’s treating doctor was cardiologist Dr. Andrew Henry,
MD, who felt the distal posterior descending branch was occluded (T. 204). On October 23,
2007 Dr. Henry noted that the apical inferior akinesis of the Plaintiff’s heart was consistent with
infarction. The Plaintiff also had an apical inferior VSD (ventricular septal defect) and the
Plaintiff’s RV systolic pressure was quite elevated. (T. 220). On November 15, 2007 the
Plaintiff was again seen by Dr. Henry at the Arkansas Heart Hospital and an Echo-cardiogram
was performed which showed a large septal discontinuity, ventricular septal defect, moderate
tricuspid regurgitation, estimated RV systolic pressure in the mid fifty’s and an ejection fraction
of 45 to 55 percent. The Plaintiff was admitted to the Arkansas Heart Hospital on November 29,
2007 for coronary artery bypass grafting and ventricular septal defect repair which was
performed on that day and was discharged on December 4, 2007. (T. 246-248). On July 10, 2008
the Plaintiff was seen by Dr. Henry again complaining that he was chronically fatigued. He had
no angina but occasional sharp left-sided chest pain. The plaintiff had shortness of breath and
difficulty sleeping and depression. Dr. Henry’s plan was to administer a stress echocardiogram.
(T. 310-311). Dr. Henry put the Plaintiff on Zoloft 50 mg and lisinopril 20 mg 2and to decrease

1

Ejection fraction is a measurement of the percentage of blood leaving your heart each
time it contracts. (See www.mayoclinic.com Viewed August 12, 2011).
2

Lisinopril is in a group of drugs called ACE inhibitors. ACE stands for angiotensin
converting enzyme. Lisinopril is used to treat high blood pressure (hypertension), congestive
heart failure, and to improve survival after a heart attack. (See www.drugs.com Viewed August
11, 2011).
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his metoprolol to 25 mg 3twice daily for 2 weeks. A stress echocardiogram was attempted by Dr.
Stewart at the Little Rock Cardiology Clinic on August 5, 2008. Dr. Stewart noted that the
Plaintiff was able to perform the test for 3 minutes and 46 seconds. His peak blood pressure was
160/100 with a heart rate of 142. The test was “stopped secondary to increase in chest pain and
discomfort. There was an abnormal baseline EKG with nonspecifict T wave abnormalities
inferolaterally.” Dr. Stewart recommended a coronary angiogram (T. 313) which was performed
on August 26, 2008. The test showed depressed left ventricular systolic function with ejection
fraction of 45%. (T. 319, 328).
The only Physical RFC in the record was performed by Dr. Floyd, a non examining, non
treating physician on April 1, 2008. Dr. Floyd found that the Plaintiff could lift 10 pounds
occasionally, less than 10 pounds frequently, could stand and/or walk and sit for 6 hours in an 8
hour day with an allocation for normal breaks. He found no limitations in the Plaintiff’s ability
to push and/or pull. (T. 283). Dr. Floyd’s opinion was reviewed and affirmed by Dr. Jerry
Thomas on July 11, 2008. The ALJ seemed to put great weight on the opinion of Dr. Floyd
when she stated that the “opinion of the consultative examiner is given significant weight as it
was consistent with the medical evidence of record.” (T. 75).
We have stated many times that the results of a one-time medical evaluation do not
constitute substantial evidence on which the ALJ can permissibly base his decision. See, e.g.,

3

Metoprolol is in a group of drugs called beta-blockers. Beta-blockers affect the heart and
circulation (blood flow through arteries and veins). Metoprolol is used to treat angina (chest pain)
and hypertension (high blood pressure). It is also used to treat or prevent heart attack. (See
www.drugs.com Viewed August 11, 2011).

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Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir.1999) (stating that the opinion of a consultative
physician does not generally satisfy the substantial evidence requirement). See also Cox v.
Barnhart, 345 F.3d 606, 610 (C.A.8 (Ark.),2003).
The Plaintiff’s treating physician Dr. Henry completed a “Cardiac Assessment” on July
10, 2008 which stated that the Plaintiff suffered sharp pain caused by exertion. Dr. Henry stated
that “examples” of the exertion causing the pain was bending, walking and lifting”. (T. 298).
The court notes that these were only “examples” of the exertions that could cause pain and
certainly not an exhaustive list. Dr. Henry further stated that walking 1/8 of a mile could cause
dyspnea (shortness of breath). (T. 299). The “Cardiac Assessment” was not an RFC evaluation
but a cursory two page report that dealt primarily with pain.
A stress test was attempted on August 5, 2008 which had to be aborted (T. 313) and a
subsequent angiogram was performed on August 26, 2008 which showed depressed left
ventricular systolic function with ejection fraction of 45%. (T. 319, 328). The ejection fraction
was lower than the fraction that existed prior to the Plaintiff’s bypass surgery.
The opinion of a treating physician is accorded special deference and will be granted
controlling weight when well-supported by medically acceptable diagnostic techniques and not
inconsistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2); Prosch v.
Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000).
In this instance the ALJ did not seek a RFC assessment from Dr. Henry. The ALJ has a
duty to fully and fairly develop the record. See Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir.
1995)(ALJ must fully and fairly develop the record so that a just determination of disability may
be made). The ALJ is not required to act as Plaintiff’s counsel, See Clark v.Shalala, 28 F.3d 828,
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830 (8th Cir. 1994) (ALJ not required to function as claimant’s substitute counsel, but only to
develop a reasonably complete record); see also Shannon v. Chater, 54 F.3d 484, 488 (8th Cir.
1995) (“reversal due to failure to develop the record is only warranted where such failure is
unfair or prejudicial”), however, it is incumbent upon the ALJ to establish by medical evidence
that the claimant has the requisite RFC. If a treating physician has not issued an opinion which
can be adequately related to the disability standard, the ALJ is obligated to address a precise
inquiry to the physician so as to clarify the record. See Vaughn v. Heckler, 741 F.2d 177, 179
(8th Cir. 1984).
The clarification from Dr. Henry in this regard was crucial because, not only was Dr.
Henry’s expertise as a cardiologist of particular importance in evaluating the Plaintiff’s RFC, the
Plaintiff had attempted a stress test which he had been unable to complete and he had an
angiogram performed subsequent to the cursory “cardicac assessment” rendered by Dr. Henry on
July 10, 2008. Remand is necessary to further develop the record to allow for a Physical
Residual Functioning Capacity assessment to be performed by the treating physician.
V.

Conclusion:
Accordingly, the court finds 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.

Dated this August 12, 2011.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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