Harl v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on November 14, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
FELICIA KAY HARL

PLAINTIFF

v.

CASE NO. 2:11-CV-02241

MICHAEL J. ASTRUE, Commissioner
of Social Security Administration

DEFENDANT

MEMORANDUM OPINION
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).
I.

Procedural Background:
The plaintiff filed her applications for DIB and SSI on August 9, 2009 (T. 11), alleging an

onset date of January 30, 2007 (T. 119), due to plaintiff’s Thoracic Outlet Syndrome1 and Back
Pain (T. 149). Plaintiff’s applications were denied initially and on reconsideration. Plaintiff then
requested an administrative hearing, which was held on September 29, 2010. Plaintiff was
present and represented by counsel.

1

Thoracic outlet syndrome is a term used to describe pain in the arm, shoulder, and neck. It can be caused
from compression of the brachial plexus or compression of the subclavian artery. Look here for more information:
http://www.ninds.nih.gov/disorders/thoracic.htm

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At the time of the administrative hearing, plaintiff was 43 years of age and possessed a
High School Education. The Plaintiff had past relevant work (“PRW”) experience as a cashier
and forklift operator (T. 150).
On December 9, 2010, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s Degenerative Disk Disease and Obesity did not meet or equal any Appendix 1
listing. T. 15. The ALJ found that plaintiff maintained the residual functional capacity (“RFC”)
to perform light work T. 16. With the assistance of a vocational expert, the ALJ then determined
Plaintiff could perform the representative occupations of fishing accessory maker, plumbing
fitting finisher, and filing machine operator. T. 19-20.
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. 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).
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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. 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:
The Plaintiff contends that the ALJ committed error in determining the Plaintiff's RFC by

failing to develop the record properly and improperly discounting her subjective complaints.
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
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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).
The ALJ determined that the Plaintiff had the RFC to perform Light Work (T. 16).
20 C.F.R. § 404.1567 defines light work as:
(b) 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, you must have the ability
to do substantially all of these activities. If someone can do 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
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time.
Dr. Bill F. Payne, a non-examining consultive physician, provided a physical RFC
assessment on January 27, 2010. Dr. Payne found that the Plaintiff could lift 20 pounds
occasionally and 10 pounds frequently, could stand and/or walk and sit for six hours in an eight
hour workday and had no limitations on her ability to push and/or pull (T. 286). Dr. Payne
offered NO explanation as to how and why the evidence supported his conclusion. (Id.). Dr.
Payne found no postural limitations (T. 287), no Manipulative Limitations (T. 288), and no
Environmental Limitations (T. 289). Dr. Payne had the x-rays from 02/6/07; MRI from 3/14/07;
Progress Reports from 3/27/07 and 7/17/07; MRI from 4/22/09; and o/v notes from 01/06/10 (T.
283-284).
Dr. Jim Takach, a non-examining consultive physician, provided a physical RFC
assessment on May 24, 2010. Dr. Takach found that the Plaintiff could lift 10 pounds
occasionally and less than 10 pounds frequently, could stand and/or walk for at least 2 hours in
an 8 hour day and could sit for 6 hours in an 8 hour day, and that she had no limitations on her
ability to push and/or pull (T. 304). Dr. Takach found the Plaintiff to have occasional Postural
Limitations and that she should never climb a ladder/rope/scaffolds (T. 305). He also found that
she had some Manipulative Limitations in her ability to reach (T. 306).
Dr. Takach explained that the evidence supporting his conclusion was the Plaintiff “hx of
Obesity (BMI-43) and DLS Disc Dz with DDD and small LS HNP -w/o Neuro deficits on
exams- PVMT/LROM DLS - undergoing conservative Rx. Hx of TOS with pain & weakness on
overhead reaching w/o defined sequelae currently. From the MER available- she retains the
ability to function at SEDENTARY exertion.” (T. 304).
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We have stated many times that 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). The ALJ held that the
he did not accord the opinions of Dr. Payne or Dr. Takach significant probative weight because
they were “brief, devoid of any rationale or findings of fact and conclusory in nature.” He also
found that their findings were inconsistent with the evidence of the record as a whole. (T. 18).
Interestingly the ALJ does not try to differentiate between the two divergent RFC assessments
but discounts both.
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). The ALJ should obtain medical evidence that addresses the claimant's ability to function
in the workplace. Lauer v. Apfel, 245 F.3d 700 at 704 (8th Cir.2001). “ ‘An administrative law
judge may not draw upon his own inferences from medical reports.’ ” Nevland v. Apfel, 204 F.3d
853, 858 (8th Cir.2000) (quoting Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir.1975)).
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). “Under this step, the ALJ is required to set forth specifically
a claimant’s limitations and to determine how those limitations affect her RFC.” Id.
A treating source from Sparks Regional Medical Center diagnosed Plaintiff with only
acute lumbar strain with spasm (Tr. 231) after she reported that a dryer fell on her in 2007. An
MRI of the lumbar spine was performed in March 2007 indicating a left-sided protrusion /
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herniation at L5-S 1. (T. 228). X -rays taken at Sparks Medical Plaza on March 2, 2007, indicated
narrowing of the disc space at L5-S 1 with posterior spondylolisthesis and loss of the normal
lordotic curvature of the lumbar spine with straightening. (T. 234). Spondylolisthesis is a
condition in which a bone (vertebra) in the spine slips out of the proper position onto the bone
below it. Her treating physician merely prescribed physical therapy three times per week for six
weeks in July 2007 but he also noted that she should see a “spine specialist as soon as possible”
(T. 235).
A second MRI completed in April of 2009 confirmed the existing left-sided disc
protrusion at L5-S 1 without canal stenosis or obvious nerve root compression. (T. 246). Also
noted was the possibility of an existing protrusion at T9-T1O. (id.). Doctors at the St. Edward
Mercy Clinic indicated that the Plaintiff's weight was 218 pounds (obese) and that her physical
examination revealed "positive straight leg raises at less than forty-five (45) degrees for bilateral
lower extremities." (T. 254). The Doctors assessment indicated that she suffered from low back
pain with reticular symptoms which were non- responsive to prior treatment. (id.).
In November 2009 the Plaintiff saw Dr. Arthur Johnson at the River Valley
Musculoskeletal Center. Dr. Johnson specializes in Neurological Surgery2 and considered the
Plaintiff’s previous MRI (T. 260). Dr. Johnson diagnosed the Plaintiff with Lumbago3 and
Morbid Obesity and his recommended treatment was physical therapy and weight loss but did

2

(See http://www.armedicalboard.org/public/verify/results.aspx?strPHIDNO =ASMB16741)

3

A painful condition of the lower back, as one resulting from muscle strain or a slipped disk. (See
http://medical-dictionary.thefreedictionary.com/lumbago)

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prescribe Ultram4 and Flexeril5. (T. 260). Opinions of specialists on issues within their areas of
expertise are “generally” entitled to more weight than the opinions of non-specialists (See 20
C.F.R. §§ 404.1527(d)(5), 416.927(d)(5); Guilliams v. Barnhart 393 F.3d 798, 803 (C.A.8
(Mo.),2005), 20 C.F.R. § 404.1527) but Dr. Johnson did not express an opinion on the Plaintiff
ability to perform work related activity.
Also the Plaintiff’s straight leg test was normal in April 2010 (T. 295), her alr was
negative, and her reflexes were fine. (T. 297). It certainly appears that there is conflicting
medical information in the record but none of the Plaintiff’s treating physicians were asked to
make a physical residual functional capacity assessments. If a treating physician has not issued
an opinion which can be adequately related to the disability standard, the ALJ is obligated to
address a precise inquiry to the physician so as to clarify the record. See Vaughn v. Heckler, 741
F.2d 177, 179 (8th Cir. 1984).
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), but, in this case, the court believes that remand is
necessary to allow the ALJ to address specific inquiries to obtain an RFC from the Plaintiff’s
treating physician.
IV.

Conclusion:
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

4

Ultram (tramadol) is a narcotic-like pain reliever used to treat moderate to severe pain.

5

Flexeril (cyclobenzaprine) is a muscle relaxant.

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should be remanded to the Commissioner for further consideration.

Dated this November 14, 2012.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE

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