Covington v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on October 15, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CONNIE L. COVINGTON

PLAINTIFF

v.

Civil No. 11-2193

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Connie Covington, 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 her claim
for supplemental security income (“SSI”) under Title XVI of the Social Security Act (hereinafter “the
Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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:
The Plaintiff filed her application for SSI on August 12, 2010, alleging an onset date of

September 8, 1991, due to asthma, a pacemaker, fatigue, and shoulder pain. Tr. 132, 147-148, 159, 161165, 176, 178. The Commissioner denied Plaintiff’s application initially and on reconsideration. Tr.
60-62, 65-70. An administrative hearing was held on February 22, 2011. Tr. 38-57. Plaintiff was
present and represented by counsel.
At the time of the hearing, Plaintiff was 21 years old and possessed an eleventh grade education.
Tr. 15, 41. No past relevant work was identified by the Administrative Law Judge (“ALJ”).
On May 16, 2011, the ALJ found Plaintiff’s asthma and history of congenital atrioventricular
block with dual chamber pacemaker were medically determinable impairments. Tr. 12-18. However,
he concluded that none of her impairments, considered singularly or in combination, significantly limited
her ability to perform basic work-related activities for 12 consecutive months. Accordingly, the ALJ
determined that Plaintiff did not have a severe impairment, and was not disabled.

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Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on September 23, 2011. Tr. 1-4. Subsequently, Plaintiff filed this action. ECF No. 1. This case is
before the undersigned by consent of the parties. Both parties have filed appeal briefs, and the case is
now ready for decision. ECF Nos. 11, 12.
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. 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

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diagnostic techniques.” 42 U.S.C. § § 423(d)(3), 1382(3)(c). A plaintiff must show that his or her
disability, not simply their 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 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:
Of particular concern to the undersigned is the ALJ’s conclusion that Plaintiff’s impairments are

not severe. An impairment is not severe if it amounts only to a slight abnormality that would not
significantly limit the claimant’s physical or mental ability to do basic work activities. See Bowen v.
Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); id. at 158, 107 S.Ct. 2287
(O'Connor, J., concurring); 20 C.F.R. § 404.1521(a). If the impairment would have no more than a
minimal effect on the claimant’s ability to work, then it does not satisfy the requirement of step two.
Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007).
The evidence of record reveals that Plaintiff was diagnosed with congenital atrioventricular
block and underwent surgery for the placement of her first pacemaker at the age of 3. Tr. 384-391. In
August 1993, her pacemaker was replaced. Tr. 368-382. And 4 months later, doctors had to replace the
ventricular pacing lead adaptor on her pacemaker. Tr. 360-366. In June 1994, Plaintiff’s pacemaker was
again replaced, due to malfunction. Tr. 352-359. At this time, x-rays showed possible cardiac edema.

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In April 1997, the ventricular lead and pulse generator had to be replaced with yet another total
replacement of the pacemaker in September 2003. Tr. 328-331, 346-350. A November 2004 treatment
note reveals that Plaintiff experienced residual chronic pain in her pocket area following the surgery.
Tr. 330. Her pacemaker was readjusted, but it appears she continued to experience chest pain. Tr. 328331. In March 2009, pediatric cardiologist, Dr. Volkan Tuzcu, noted that Plaintiff had also reported
chronic shoulder pain. Tr. 323-326. He opined that her shoulder pain could be unrelated to her
pacemaker, possibly the result of a cervical hernia. Accordingly, he referred her to a neurologist.
Plaintiff was not, however, able to consult a neurologist as she had no insurance or money to pay the
consultation fee. And, Plaintiff had attained the age of 18, disqualifying her from further treatment at
Arkansas Children’s Hospital.
In August 2009, Plaintiff was treated in the emergency room for tachycardia, mild dehydration,
and hypokalemia. Tr. 265-271. Five months later, she returned to the emergency room with complaints
of palpitations, and an EKG was noted to be abnormal. Tr. 294-316.
The ALJ concluded that Plaintiff’s heart condition was a non-severe impairment because it was
amenable to treatment via the insertion of a pacemaker. He did not, however, contact her treating
physician to determine what, if any, limitations her underlying heart condition might impose on her
ability to perform exertional activities. He also failed to obtain medical testimony or advice, via a
consultative exam or contact with Plaintiff’s treating cardiologist, regarding any limitations resulting
from the fact that she has a pacemaker. Research reveals that certain work-related precautions are
imposed on patients with pacemakers. Those precautions sometimes include limiting strenuous activity,
including lifting, carrying, pulling, and pushing objects over 10 pounds; reaching or stretching above the
head; and, sudden, jerky arm movements. Other common restrictions apply to workplace use of powerful
electromagnetic pulses that might interfere with the operation of the pacemaker. Strong magnetic fields,
electrical cables carrying more than 10,000 amperes of current, alternating welding currents, powerful

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radio transmitters, TV and radar transmitters, power tools and assembly line robots, induction furnaces,
and electric generating plants or substations interfere with pacemakers. Digital cellular telephones and
anti-theft devices also have the potential to interfere with pacemakers.
Given these potential, undeveloped limitations, the undersigned is of the opinion that remand
is required because substantial evidence does not support the ALJ’s conclusion that Plaintiff’s heart
condition is non-severe. The record is undeveloped as to Plaintiff’s resulting work-related restrictions.
See Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994) (ALJ is required to order medical
examinations and tests only if the medical records presented to him do not give sufficient medical
evidence to determine whether the claimant is disabled); 20 C.F.R. §§ 404.1519a(b) and 416.919a(b)
(2006). Accordingly, on remand, the ALJ is directed to address interrogatories to the physicians who
have evaluated and/or treated Plaintiff asking the physicians to review Plaintiff’s medical records; to
complete an RFC assessment regarding Plaintiff’s capabilities during the time period in question, and
to give the objective basis for their opinions so that an informed decision can be made regarding
Plaintiff’s ability to perform basic work activities on a sustained basis during the relevant time period
in question. Chitwood v. Bowen, 788 F.2d 1376, 1378 n.1 (8th Cir. 1986); Dozier v. Heckler, 754 F.2d
274, 276 (8th Cir. 1985). They should also be questioned regarding the limitations resulting from
Plaintiff’s pacemaker. If the ALJ is unable to contact Plaintiff’s treating doctor, then a consultative
examination should be ordered.
V.

Conclusion:
Accordingly, we conclude that the ALJ’s decision is not supported by substantial evidence and

should be reversed and remanded to the Commissioner for further consideration pursuant to sentence
four of 42 U.S.C. § 405(g).

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DATED this 15th day of October 2012.

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

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