Mallard v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable James R. Marschewski on January 24, 2013. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
KEVIN C. MALLARD
Civil No. 11-2220
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Kevin Mallard, 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, disability insurance benefits (“DIB”), and supplemental security income
(“SSI”) under Titles II and 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.
Plaintiff filed his applications for DIB and SSI on August 21, 2009, alleging and onset date of
July 30, 2009, due to manic depression, bipolar disorder, anxiety, post traumatic stress disorder
(“PTSD”), lumbar disk problems, short bowel syndrome, and alcoholism. Tr. 10, 19, 178, 186. His
applications were denied initially and on reconsideration. Tr. 10, 65-68, 71-83.
An administrative hearing was held on January 5, 2011. Tr. 27-63. Plaintiff was present and
represented by counsel. At this time, Plaintiff was 52 years of age and possessed a high school education
with one year of college. Tr. 10, 19, 178, 186. Plaintiff was reportedly enrolled in special education
classes from Kindergarten through tenth grade, resulting in limited reading and math skills. Tr. 33, 178.
He had no past relevant work (“PRW”) experience, but had worked as a fast food worker and cafeteria
attendant. Tr. 19, 56, 57, 181, 182.
On April 28, 2011, the Administrative Law Judge (“ALJ”) concluded that, although severe,
Plaintiff’s short bowel syndrome, chronic obstructive pulmonary disease (“COPD”), degenerative disk
disease (“DDD”) of the cervical spine, PTSD, mood disorder, and anxiety disorder did not meet or equal
any Appendix 1 listing. Tr. 12-14. He found that plaintiff maintained the residual functional capacity
(“RFC”) to perform
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the
claimant can occasionally climb, balance, stoop, kneel, crouch, and crawl; the claimant
must avoid concentrated exposure to dusts, fumes, gases, odors, and poor ventilation.
Further, the claimant can understand, remember, and carry out simple, routine, and
repetitive tasks; respond appropriately to supervisors, co-workers, and usual work
situations; but can have only occasional contact with the general public.
Tr. 14-19. With the assistance of a vocational expert, the ALJ then found that plaintiff could still
perform work as a production worker, machine tenderer, and motel cleaner. Tr. 19-20.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on October 19, 2011. Tr. 1-6. Subsequently, plaintiff filed this action. Doc. # 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. Doc. # 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. 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 we find it possible “to draw
two inconsistent positions from the evidence, and one of those positions represents the Secretary’s
findings, we must affirm the decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and
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)(c). A plaintiff must show that his disability,
not simply his impairment, has lasted for at least twelve consecutive months.
The Evaluation Process:
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 or her 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 or her 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).
Of particular concern to the undersigned is the ALJ’s RFC assessment. RFC is the most a person
can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). A disability claimant has the
burden of establishing his or her RFC. See Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004).
“The ALJ determines a claimant’s RFC based on all relevant evidence in the record, including medical
records, observations of treating physicians and others, and the claimant’s own descriptions of his or her
limitations.” Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009); see also Jones v. Astrue, 619 F.3d
963, 971 (8th Cir. 2010) (ALJ is responsible for determining RFC based on all relevant evidence,
including medical records, observations of treating physicians and others, and claimant’s own description
of his limitations). 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); see also Jones, 619 F.3d at 971 (RFC finding must be
supported by some medical evidence).
In the present case, the ALJ concluded that Plaintiff’s short bowel syndrome and DDD of the
cervical spine were severe impairments. However, he failed to take into consideration that fact that
Plaintiff was prescribed Oxycodone and Methadone to treat his pain, Carbamazepine and Trazodone, to
treat his mental impairments, Lopermide to treat his diarrhea, and Temazepam to help him sleep. See
Polaski, 739 F.2d at 1322 (holding ALJ is required to take into account the dosage, effectiveness, and
side effects of all medications prescribed). Oxycodone, generic for OxyContin, is a narcotic analagesic
prescribed to treat moderate to severe pain. See Federal Drug Administration, OxyContin - Answers and
Providers/ucm207196.htm (last accessed January 24, 2013). Its side effects include lightheadedness,
drowsiness, weakness, dizziness, fainting, and loss of consciousness, each of which can be increased
when Oxycodone is combined with other narcotic pain medications and antidepressants. See Physician’s
Desk Reference, Oxycontin, http://www.pdrhealth.com/drugs/oxycontin (last accessed January 24, 2013).
Similarly, Methadone, generic for Dolophine, is an opioid medication that can cause sleepiness, balance
issues, and may affect the ability to make decisions, think clearly, and/or react quickly. See PHYSICIAN’S
DESK REFERENCE (“PDR”), Dolophine, http://www.pdrhealth.com/drugs/dolophine (last accessed
January 24, 2013). It. Id. Carbamazepine i prescribed to treat bipolar disorder, and cause severe fatigue
or weakness. See PDR, Carbamazepine, http://www.pdr.net/drugpages/medicationguide.aspx?mg=10
329 (last accessed January 24, 2013). Trazodone is an antidepressant that can also cause sleepiness,
dizziness, and blurred vision. See PDR, Trazodone, http://www.pdr.net/drugpages/medicationguide.aspx
?mg=11013 (last accessed January 24, 203\13). Further, Loperamide can also result in dizziness,
drowsiness, and fatigue. And, Temazepam, prescribed to treat insomnia, often results in drowsiness,
dizziness, and memory loss. See PDR, Restoril, http://www.pdr.net/drugpages/medicationguide.aspx?
mg=5491 (Last accessed January 24, 2013).
We note that Plaintiff testified that his medications “knocked him down.” Tr. 53. Given the
possible side effects associated with each of these medications, as well as Plaintiff’s own reports of side
effects, we believe that remand is necessary to allow the ALJ to properly include Plaintiff’s medication
side effects in his RFC assessment. Clearly, someone prone to experience dizziness and drowsiness
should not work near or operate dangerous machinery, including conveyor belts and kitchen utensils and
The ALJ also failed to properly consider the symptoms associated with Plaintiff’s short bowel
syndrome. Treatment notes reveal that he suffered from chronic diarrhea and significant abdominal pain.
Tr. 188-189, 308-310, 361-367, 382-386, 568-574, 891. Plaintiff testified that he goes to the restroom
15-20 times during a 24 hour period. Tr. 41. And, on at least one occasion, he reported to a doctor that
he went to the restroom 10 times per day, due to diarrhea. However, the ALJ improperly dismissed his
complaints, stating that he did not seek out consistent treatment. We do not agree and feel that remand
is also necessary for further evaluation of how Plaintiff’s bowel disorder impacted his ability to perform
work-related tasks on a daily basis. Since the record does not contain an RFC assessment from
Plaintiff’s treating doctor, on remand, the ALJ is directed to obtain such an RFC and to properly consider
it before making a final determination in this case.
Based on the foregoing, we reverse the decision of the ALJ and remand this case to the
Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g).
DATED this 24th day of January 2013.
HON. JAMES R. MARSCHEWSKI
UNITED STATES MAGISTRATE JUDGE
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