Felegi v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on December 16, 2011. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JEANNINE MARIE FELEGI
vs.

PLAINTIFF
Civil No. 2:10-cv-02186

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Jeannine Marie Felegi (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the
Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final
decision of the Commissioner of the Social Security Administration (“SSA”) denying her application
for Disability Insurance Benefits (“DIB”) and a period of disability under Title II of the Act. The
parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings
in this case, including conducting the trial, ordering the entry of a final judgment, and conducting
all post-judgment proceedings. ECF No. 6.1 Pursuant to this authority, the Court issues this
memorandum opinion and orders the entry of a final judgment in this matter.
1.

Background:
Plaintiff filed her disability application on November 18, 2008.2 (Tr. 10, 92-97). Plaintiff

alleged she was disabled due to the following: congenital rubella syndrome, blindness in one eye,
cataract in one eye, short term memory loss, attention deficit disorder, osteoarthritis, depression, high
1

The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript pages
for this case are referenced by the designation “Tr.”
2

Plaintiff’s application is actually entitled a “Supplemental Security Income” application. (Tr. 92-97). It
appears this is the only application in the record. Based upon the ALJ’s opinion, however, this should actually be
entitled a DIB application. (Tr. 10). Thus, this Court presumes this SSI application is actually a DIB application
and will treat the application as such.

1

blood pressure, and pain. (Tr. 118). Plaintiff alleged an onset date of November 14, 2008. (Tr. 10,
92). These applications were denied initially and again upon reconsideration. (Tr. 73-74).
Thereafter, Plaintiff requested an administrative hearing on her application, and this hearing
request was granted. (Tr. 85-91). Plaintiff’s administrative hearing was held on April 22, 2010 in
Fort Smith, Arkansas. (Tr. 37-70). Plaintiff was present and was represented by counsel, Matthew
Ketchum, at this hearing. Id. Plaintiff, a witness for Plaintiff, and Vocational Expert (“VE”) Dale
Thomas testified at this hearing. Id. At the time of this hearing, Plaintiff was fifty-two (52) years
old, which is defined as a “person closely approaching advanced age” under 20 C.F.R. §
404.1563(d), and had obtained her GED. (Tr. 41).
On July 19, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 10-18). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through March 31, 2012. (Tr. 12, Finding 1). The ALJ determined Plaintiff
had not engaged in Substantial Gainful Activity (“SGA”) since November 14, 2008, her alleged
onset date. (Tr. 12, Finding 2). The ALJ determined Plaintiff had the following severe impairments:
depression, attention deficit hyperactivity disorder, and osteoarthritis. (Tr. 12). The ALJ also
determined Plaintiff’s impairments did not meet or medically equal the requirements of any of the
Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 13-14,
Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 14-17, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to perform the following:
2

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) except the work must be unskilled and involve only incidental
interaction with others which is consistent with the work performed and should not
include any fine detail work.
Id. “Light work” includes the following:
Light work. Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.
20 C.F.R. § 404.1567(b).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17, Finding 5). The ALJ
determined Plaintiff’s PRW included work as a candle maker, cashier, insurance salesperson, and
receptionist. Id. Based upon her RFC and her ability to only have “incidental interaction with
others,” the ALJ determined Plaintiff did not retain the capacity to perform any of her PRW. Id. The
ALJ, however, also evaluated whether there was other work existing in significant numbers in the
national economy that she could perform. (Tr. 17-18, Finding 9). The VE testified at the
administrative hearing regarding this issue. (Tr. 18, 67-68).
Based upon that testimony, the ALJ determined that a hypothetical person with Plaintiff’s
limitations would be able to perform representative occupations such as (1) production worker with
300,000 such jobs in the nation and 6,300 such jobs in the region; (2) maid with 326,000 such jobs
in the nation and 3,000 such jobs in the region; and (3) poultry eviscerator with 53,000 such jobs in
the nation and 3,500 such jobs in the region. (Tr. 18). The ALJ then determined Plaintiff had not

3

been under a disability, as defined by the Act, from November 14, 2008 through the date of her
decision or through July 19, 2010. (Tr. 18, Finding 10).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 4-5). See 20 C.F.R. § 404.968. The Appeals Council declined to review this
unfavorable decision. (Tr. 1-3). On December 7, 2010, Plaintiff filed the present appeal. ECF No.
1. The Parties consented to the jurisdiction of this Court on December 21, 2010. ECF No. 6. Both
Parties have filed appeal briefs. ECF Nos. 11-12. This case is now ready for decision.
2.

Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s

findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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. See 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 or her disability by establishing a physical or mental disability that lasted at least one
4

year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,
160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
a “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 or her disability, not simply his or her impairment, has lasted for at least twelve consecutive
months. See 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)
whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3.

Discussion:
In her appeal brief, Plaintiff claims the ALJ’s disability determination should be reversed and

remanded. ECF No. 11. Plaintiff raises several claims to support her argument that this case should
5

be reversed and remanded. Id. Specifically, Plaintiff claims the following: (1) the ALJ erred as it
relates to her findings of severe impairments; (2) the ALJ largely ignored Plaintiff’s impairments as
set out in the RFC determination by Plaintiff’s primary care physician; (3) the ALJ failed to develop
the record as to Plaintiff’s impairments regarding congenital rubella syndrome and seizure disorder;
and (4) the ALJ erred in her credibility assessment. ECF No. 11 at 13-19. Because the one glaring
error by the ALJ relates to Plaintiff’s third argument for reversal, this Court will only address that
argument.
Plaintiff alleged disability due to congenital rubella syndrome. (Tr. 118). The record reflects
that, during the relevant time period, Plaintiff had been diagnosed with this impairment and received
treatment for this impairment. (Tr. 181-183, 247-270). Indeed, the consultative examination
performed by an independent medical doctor not only confirmed Plaintiff suffered from this
syndrome but that it manifested itself with “remarkable impaired memory.” (Tr. 223-227).
Despite this fact, the ALJ found this impairment was non-severe. (Tr. 12). The ALJ based
her finding that this impairment was non-severe upon her independent internet research which
indicated congenital rubella syndrome does not cause brain deterioration as Plaintiff’s medical
records suggest. (Tr. 49-50). It is worth summarizing the ALJ’s statements:
ALJ:

Counsel, here’s another piece of homework for you. I gave you one in
another case. When I don’t understand something, shockingly, I go try to
research it and figure out what it is. And like everybody else, I went to the
internet. And I went looking up congenital rubella syndrome, there is no
indication [of brain deterioration] in any of the literature that I found. Now
granted, I didn’t go pay for the, you know, the lengthier medical transcripts,
because I wouldn’t have understood them anyway–but nothing of a
degenerative nature on those. So–and if we–you know, that’s a big stumbling
block for me, because if I don’t–I don’t know where he got this, and I don’t
know what his medical basis is for it. I’m not saying that he’s not right. But
what I’m saying is, you know, I went–because what I do when they’re odder,
less common–not odd, but less common diagnosis, I go to the internet, like
6

everybody else because virtually ever rare or orphaned disorder has a help
group. So I went and looked up congential rubella, and there–I didn’t see
anything in regards to later onset degeneration. From everything that I saw,
what you have when you’re born is what you have, and it doesn’t deteriorate
from there. So the ball’s in your court to find me something that’s saying
otherwise, because I didn’t see that at all. And when I don’t find anything
that supports the doctor’s basic assumption, then I have problems with
everything else after that.
(Tr. 49-50).
Instead of further developing the record by recontacting Plaintiff’s treating sources, the ALJ
“Googled” Plaintiff’s illnesses and found her impairments were not disabling. Such a practice is
prohibited. See Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990) (recognizing that “the ALJ must
not substitute his opinions for those of the physician”) (citation omitted). Instead, if the ALJ has a
question regarding the impact an impairment has on a claimant’s ability to work, the ALJ should
contact that claimant’s treating source. See 20 C.F.R. § 404.1512(e) (2011).
4.

Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits

to Plaintiff, is not supported by substantial evidence and should be reversed and remanded. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 16th day of December, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

7