-JRM Mallard v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable Erin L. Setser on January 23, 2012. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
KEVIN C. MALLARD
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Plaintiff, Kevin C. Mallard, 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 claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and 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).
Plaintiff protectively filed his current applications for DIB and SSI on November 9, 2007,
alleging an inability to work since October 30, 2007, due to manic depression, “bi-polar,” PTSD
(posttraumatic stress disorder), anxiety, alcoholism and short bowel syndrome. (Tr. 127, 132).
An administrative hearing was held on October 23, 2008, at which Plaintiff chose to appear
without counsel and testified. (Tr. 12-45).
By written decision dated August 3, 2009, the ALJ found that Plaintiff had an impairment
or combination of impairments that were severe - short bowel syndrome, a mood disorder, and
anxiety disorder. (Tr. 55). 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 1, Subpart P, Regulation No.
4. (Tr. 55). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform light work ...in that the claimant can lift and carry 20 pounds occasionally and
10 pounds frequently. He can sit for about six hours during an eight-hour workday and
can stand and walk for about six hours during an eight-hour workday. He can perform
unskilled work and can have occasional contact with co-workers and the general public.
(Tr. 57). With the help of a vocational expert (VE), the ALJ found that Plaintiff was capable of
performing his past relevant work as a food service worker, which is classified as light exertional
level, unskilled work. (Tr. 62).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on September 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. 6).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 11, 12).
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 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. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Of particular concern to the undersigned is the ALJ’s RFC determination. 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 description of his 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 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 ALJ is [also] required to set forth specifically a
claimant’s limitations and to determine how those limitations affect his RFC.” Id.
The record in this case is replete with instances of Plaintiff’s complaints of severe
abdominal pain and diarrhea subsequent to his bowel resection, which was performed in October
of 2007. On January 14, 2008, Dr. Michael T. Pilcher, one of the physicians at the VA Hospital
in Little Rock, Arkansas, wrote a letter “To Whom It May Concern,” wherein he stated that
Plaintiff was “permanently disabled from extensive abdominal surgery, chronic abdominal pain
on pain medicines and short bowel syndrome. He is in need of supportive services including
supportive housing.” (Tr. 351). In addition, at the hearing held on October 23, 2008, Plaintiff
testified that he went to the bathroom anywhere between 10 to 20 times within a 24-hour period.
(Tr. 29). In his decision, the ALJ stated that he considered Dr. Pilcher’s opinion, and that it was
not clear that Dr. Pilcher was familiar with the definition of “disability” contained in the Social
Security Act and regulations. The ALJ further stated that it was “more likely that the doctor was
referring solely to the VA’s rules regarding disability. Therefore, the undersigned must discount
this opinion.” (Tr. 59).
The Court recognizes that a determination by an entity other than the Social Security
Administration that a claimant is disabled is not binding on the Social Security Administration.
See 20 C.F.R. § § 404.1504, 416.904; Fisher v. Shalala, 41 F.3d 1261, 1262 (8th Cir. 1994).
Nevertheless, the Court believes the ALJ should have sought clarification from Dr. Pilcher
regarding the basis for his conclusion. The ALJ had the benefit of a one-time General Physical
Examination, performed by Dr. Michael Westbrook on December 17, 2008, (Tr. 559-567), who
also completed a Medical Source Statement of Ability to do Work-related activities (Physical),
wherein Dr. Westbrook opined that Plaintiff could perform medium work with some limitations.
However, there is no indication he considered Plaintiff’s frequent need to use the restroom when
he completed the assessment. The Court believes the ALJ should have obtained a physical RFC
assessment from a treating physician at the VA, most notably Dr. Pilcher, who believed Plaintiff
to be disabled because of the bowel resection.
In addition, the Court believes the ALJ failed to properly consider the side effects of the
medications Plaintiff was taking during the relevant time period when assessing the Plaintiff’s
RFC. At the hearing, Plaintiff stated that without taking his medication, his pain in the
abdominal region was a seven, but when he took his medication, it lowered his pain to “almost
nothing because it usually puts me down, knocks me out.” (Tr. 31). He further explained that
when he was taking the pain medications and his psychotic medications, “I go into a sleep state.”
(Tr. 31). He added, “And then, it still hurts but, you know, maybe a one, scale of one, two, three,
somewhere like that. It really, it really helps reduce the pain considerably but I’m-like I said, I’m
pretty much nonfunctioning at that point.” (Tr. 31). With respect to Plaintiff’s low back pain,
he testified that without medication, the pain was about a five, but with medication, it lowered
it to almost nothing “because it pretty much knocks me out.” (Tr. 32).
The Court is of the opinion that the ALJ’s RFC assessment does not adequately address
the affect Plaintiff’s medications have on his ability to function in the workplace, and therefore
believes the ALJ should re-evaluate the RFC assessment in light of the side effects of Plaintiff’s
Based upon the foregoing, the Court believes this matter should be remanded in order for
the ALJ to obtain a physical RFC assessment from a treating physician at the VA, and to also
carefully and adequately address the side effects of Plaintiff’s medications on his ability to
function in the workplace. The ALJ should then re-evaluate Plaintiff’s RFC in light of the newly
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 24th day of January, 2012.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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