Crowley v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on August 30, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration
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).
The plaintiff filed her applications for DIB and SSI on June 8, 2009 (T. 141), alleging an
onset date of May 1, 2009 (T. 175), due to plaintiff’s insulin dependant diabetes, burned
lungs/aspiration, and problems with her legs and arms (T. 175). Plaintiff’s applications were
denied initially and on reconsideration. Plaintiff then requested an administrative hearing, which
was held on September 1, 2010. Plaintiff was present and represented by counsel.
At the time of the administrative hearing, plaintiff was 46 years of age and possessed a
GED. The Plaintiff had past relevant work (“PRW”) experience as a deli manager (T. 183).
On December 14, 2010, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s diabetes mellitus with neuropathy and osteoarthritis did not meet or equal any
Appendix 1 listing. T. 17. The ALJ found that plaintiff maintained the residual functional
capacity (“RFC”) to perform light work T. 17. With the assistance of a vocational expert, the
ALJ then determined Plaintiff could perform the representative occupations of Cashier, General
Office Clerk and Interviewer. T. 24.
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
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).
A. Relevant Time Period:
The Plaintiff’s date last insured for Title II purposes was June 30, 2010 (Tr. 15, 159). “A
title II worker cannot be found disabled under the Act unless insured status is also met at a
time when the evidence establishes the presence of a disabling condition.” SSR 83-20, 1983
WL 31249, *1 (1983). For Title II benefits, an individual must establish disability as of the date
last insured. See 42 U.S.C. §§ 423(a), (c); 20 C.F.R. § 404.320; Pyland v. Apfel, 149 F.3d 873,
876 (8th Cir. 1998) (plaintiff must establish disability before expiration of insured status); Long
v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“we will only consider an individual’s medical
condition as of the date she was last insured”); Fisher v. Shalala, 41 F.3d 1261, 1262 (8th Cir.
1994) (claimant required to show existence of disability prior to the expiration of insured status).
The importance of the time period is that the Plaintiff must establish her disability on or
before June 30, 2010.
B. Residual Functional Capacity
The ALJ found that the Plaintiff had the residual functional capacity to lift and carry 20
pounds occasionally and 10 pounds frequently; she could sit for about 6 hours in an 8 hour
workday. She can stand and walk for about 6 hours in an 8 hour workday; she could occasionally
climb, balance, stoop, kneel, crouch, and crawl; she could occasionally reach over head with her
right upper extremity; she could frequently handle and finger." T. 17.
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is defined as the individual’s maximum remaining ability to do sustained
work activity in an ordinary work setting “on a regular and continuing basis.” 20 C.F.R. §§
404.1545 and 416.945; Social Security Ruling (SSR) 96-8p (1996). 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).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering
medical evidence exclusively. Cox v. Astrue, 495 F. 3d 614 at 619 citing Lauer v. Apfel, 245
F.3d 700 at 704; Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir.2000) (per curiam) (“To the extent
[claimant] is arguing that residual functional capacity may be proved only by medical evidence,
we disagree.”). Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner.*620 20 C.F.R. §§
416.927(e)(2), 416.946 (2006).
Dr. Stephanie Frisbie was the Plaintiff’s treating physician. It appears that Dr. Frisbie
first began to treat the Plaintiff in April 2007 when she was seen for diabetes melitus
uncontrolled. (T. 325-326). Dr. Friebie then saw the Plaintiff on June 10, 2007 (T. 323-324),
February 20, 2008 (T. 320), June 5, 2008 (T. 316-317), October 20, 2008 (T. 314-315). During
all of these visits the Plaintiff’s diabetes was described as “uncontrolled”. On May 5, 2009 the
Plaintiff had a major medical event and was admitted to Saint Edwards Mercy Medical Clinic
(SEMMC) for diabetic ketoacidosis and was discharged on May 24, 2009.
Dr. Paul Bean, one of the Plaintiff’s treating physicians during her admittance to
SEMMC, found that the Plaintiff had “type 1 diabetes that is uncontrolled.” 1(T. 264).
Type 1 diabetes, once known as juvenile diabetes or insulin-dependent diabetes, is a chronic condition in
which the pancreas produces little or no insulin, a hormone needed to allow sugar (glucose) to enter cells to produce
energy. Type 2 diabetes, which is far more common, occurs when the body becomes resistant to the effects of insulin
The Plaintiff ultimately was diagnosed with respiratory failure, probable aspiration
pneumonia/ARDS, pancreatis, renal insufficiency, diabetic ketoacidosis, lactic acidosis and
hemodynamic instability. (T. 272). Whether the Plaintiff had Type 1 or Type 2 diabetes is
conflicted but the record is clear that her diabetes us uncontrolled.
Dr. Frisbie saw the Plaintiff again on June 3, 2009 (T. 311-313), August 11, 2009 (T.
344-345), and February 2, 2010 (T. 346-347). Dr. Frisbie notes that the Plaintiff had lost her
Dr. Frisbie provided a physical RFC on September 14, 2010. Dr. Frisbie felt that the
Plaintiff could only sit for one hour, and could stand and walk for only 30 minutes in an 8 hour
workday for a total at one time. During the day she felt that the Plaintiff could only sit for 5
hours and stand or walk for only 2 hours during an 8 hour workday. T. 352. Dr. Frisbie also felt
that the Plaintiff could only rarely work above shoulder level and that she could rarely use her
right and left upper extremity. She also felt that she could never grasp or finger with her right
hand and only occasionally with her left hand. (T. 353). She also felt she could only occasionally
bend (T. 353), rarely squat, stoop or twist, and could never crawl crouch or kneel. (T. 354). She
also would impose sever restrictions in regards to climbing. (Id.).
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).
or doesn't make enough insulin. See www.mayoclinic.com
The ALJ however stated that "Dr. Frisbee's physical residual functional capacity
assessment is submitted after the hearing is given little weight. Dr. Frisbee's own records fail to
reveal a type of significant clinical and laboratory abnormalities one would expect if Ms.
Crowley were in fact disabled, and the doctor did not specifically address this weakness.
Additionally, although the doctor does have a treating relationship with Ms. Crowley, the record
reveals that actual treatment visits have been relatively infrequent. Finally, the doctor's opinion
appears to rest at least in part on an assessment of impairments outside the doctor's area of
expertise." T. 22.
The only other RFC assessment is by a non-examining consultive physician performed on
November 17, 2009. Dr. Takach found that the Plaintiff could lift 20 pounds occasionally and 10
pounds frequently. That she could stand and/or walk and sit for six hours in an 8-hour work day
and she had no limitations on her ability to push and/or pull (T. 332). He found that she had
occasional postural limitations (T. 333) but no manipulative or visual limitations (T. 334). He
also found that she had no environmental limitations (T. 335). Dr. Takach acknowledge that
there was no medical source statement in the file he reviewed. (T. 337).
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., 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). This is especially true when the consultative physician is the
only examining doctor to contradict the treating physician. Id.; See also Cox v. Barnhart 345
F.3d 606, 610 (C.A.8 (Ark.),2003).
The Plaintiff appears to have been first diagnosed with Carpel Tunnel Syndrome in
February 2008 (T. 320) when she had a positive Phalen’s Sign2. The Plaintiff had complained
that her hands were numb and tingling which is the main symptom for carpal tunnel syndrom. It
is also significant that diabetes can be a contributing factor to the disease.
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). There is no bright line rule indicating when the Commissioner has or
has not adequately developed the record; rather, such an assessment is made on a case-by-case
basis. Battles v. Shalala, 36 F.3d 43 at 45 (C.A.8 (Ark.), 1994).That duty may include seeking
clarification from treating physicians if a crucial issue is undeveloped or underdeveloped. Id.
In this case the ALJ felt that the Plaintiff had the RFC to “frequently handle and finger."
(T. 17) while her treating physician felt that her ability to grasp and use her fingers for fine
manipulation was severely limited (T. 353). No specific testing was performed on the Plaintiff to
determine her abilities in these regards and the court believes remand is necessary to allow a
consultive examination for appropriate testing.
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 30, 2012.
Phalen's maneuver, test Neurology Paresthesias over the median nerve evoked by
maximum passive flexion of the wrist for 1 min, a finding in entrapment neuropathy. See
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?