Harmon v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on March 12, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
WILLIAM EMMETT HARMON
Civil No. 2:12-cv-02026-JRM
CAROLYN W. COLVIN, Commissioner of
Social Security Administration1
Factual and Procedural Background
Plaintiff, William Emmett Harmon, brings this action seeking judicial review, pursuant to
42 U.S.C. § 405(g), of a decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying his applications for disability insurance benefits and supplemental
security income pursuant to Titles II and XVI of the Social Security Act (“the Act”), respectively.
42 U.S.C. Ch. 7, Subchs. II, XVI.
Plaintiff protectively filed his Title II application on November 2, 2009. Tr. 9. On December
3, 2009, Plaintiff also protectively filed a Title XVI application. Tr. 9. In both applications, Plaintiff
alleged a disability onset date of March 16, 2009, due to cardiac aneurism, cardiac arrhythmia,
coronary artery disease, arthritis, hand injury, knee pain, and depression. Tr. 9, 165. On the alleged
onset date, Plaintiff was fifty-four years old with a tenth grade education. Tr. 24, 162, 172. He has
past relevant work as a short order cook, assistant restaurant manager, and assembly worker/machine
operator. Tr. 17, 200-207.
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security. Pursuant
to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner Michael J.
Astrue as the defendant in this suit.
Plaintiff’s applications were denied at the initial and reconsideration levels. Tr. 65-71, 76-80.
At Plaintiff’s request, an administrative hearing was held on April 6, 2011. Tr. 20-58. The ALJ
rendered an unfavorable decision on August 8, 2011. Tr. 6-18. Subsequently, the Appeals Council
denied Plaintiff’s Request for Review on December 8, 2011, thus making the ALJ’s decision the
final decision of the Commissioner. Tr. 1-3. Plaintiff now seeks judicial review of that decision.
The Court’s role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). In determining whether
evidence is substantial, the Court considers both evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000)
(citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If, after conducting this review, “it
is possible to draw two inconsistent positions from the evidence and one of those positions
represents the [Secretary’s] findings,” then the decision must be affirmed. Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
To be eligible for disability insurance benefits, a claimant has the burden of establishing that
he is unable to engage in any substantial gainful activity due to a medically determinable physical
or mental impairment that has lasted, or can be expected to last, for no less than twelve months.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A). The
Commissioner applies a five-step sequential evaluation process to all disability claims: (1) whether
the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment that significantly limits his physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a disabling impairment listed in the
regulations; (4) whether the claimant has the RFC to perform his past relevant work; and (5) if the
claimant cannot perform his past work, the burden of production then shifts to the Commissioner
to prove that there are other jobs in the national economy that the claimant can perform given his
age, education, and work experience. Pearsall, 274 F.3d at 1217; 20 C.F.R. § 404.1520(a),
416.920(a). If a claimant fails to meet the criteria at any step in the evaluation, the process ends and
the claimant is deemed not disabled. Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir.
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity at
any point since March 16, 2009, the alleged onset date. Tr. 11. At step two, the ALJ found Plaintiff
suffered from the following severe impairments: coronary artery disease status post remote
myocardial infarction, cardiac arrhythmia, right thumb crush injury, and arthralgias of the bilateral
knees status post surgery. Tr. 11-12. At step three, he determined Plaintiff did not have an
impairment or combination of impairments that met or medically equaled a listed impairment. Tr.
At step four, the ALJ found Plaintiff had the RFC to perform light work as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b), except he could frequently, but not constantly, handle and
finger with his dominant right hand. Tr. 13-17. After eliciting vocational expert testimony, the ALJ
found Plaintiff could perform his past relevant work as a chef, short order cook, assistant restaurant
manager, and assembly worker/machine operator. Tr. 17. Accordingly, the ALJ determined Plaintiff
was not under a disability from March 16, 2009, the alleged onset date, through August 8, 2011, the
date of the administrative decision. Tr. 18.
On appeal, Plaintiff contends the ALJ erred by: (A) determining his impairments did not meet
or equal a listed impairment; (B) improperly dismissing his subjective complaints; (C) improperly
determining his RFC; and (D) determining he could return to his past relevant work. See Pl.’s Br.
10-20. Defendant argues that substantial evidence supports the ALJ’s determination. See Def.’s Br.
5-15. For the following reasons, the court finds that substantial evidence does not support the ALJ’s
Plaintiff has a history of remote acute anterior myocardial infarction (2002), knee pain with
a history of multiple surgeries, and a crush injury to his right thumb. Tr. 32-36, 355-359. He also
alleges depression, shortness of breath, fatigue, coronary artery disease, cardiac arrhythmia, and joint
pain. Tr. 36-40.
On March 17, 2009, Plaintiff was involved in a work accident that resulted in a crush injury
to his right thumb. Tr. 264. X-rays of Plaintiff’s right hand revealed some fractures of the proximal
portion of the distal phalanx, near the interphalangeal joint. Tr. 265. Stephen Heim, M.D.,
examined Plaintiff’s hand and noted that tendon functions were intact. Tr. 265. He placed a splint
on Plaintiff’s right hand and opined that surgery was not necessary. Tr. 265. At a followup
appointment on March 25, 2009, Plaintiff could flex and extend the metacarpophalangeal joint and
extend the interphalangeal joint. Tr. 267. He had good thumb and forefinger pinch. Tr. 267. Dr.
Heim noted no signs of infection or deep vein thrombosis. Tr. 267. On April 7, 2009, Dr. Heim
noted that Plaintiff could begin working on range of motion exercises. Tr. 269.
On February 17, 2010, Plaintiff underwent a mental diagnostic evaluation with Diane
Brandmiller, Ph.D. Tr. 272-278. Dr. Brandmiller diagnosed Plaintiff with depressive disorder not
otherwise specified and estimated Plaintiff’s Global Assessment of Functioning (“GAF”) score at
65-75. Tr. 276. Dr. Brandmiller noted that Plaintiff was able to interact in a socially appropriate
manner, communicate in a clear and effective manner, understand, remember, and carry out simple
instructions, attend and sustain concentration and persistence, and complete tasks without delay. Tr.
277-278. She further noted that Plaintiff would likely respond to stress in a work setting with a
tempered response and a problem-solving approach. Tr. 277.
On February 24, 2010, Plaintiff saw Van Hoang, M.D., for a consultative physical
examination. Tr. 280-284. On examination, Plaintiff had normal passive range of motion in all
extremities, with the exception of ankylosis of the first finger of his right hand. Tr. 282. Plaintiff
had full range of motion in his hips, knees, and spine. Tr. 282. He was able to hold a pen and write,
touch his fingertips to his palm, oppose his thumb to his fingers, pick up a coin, stand/walk without
assistive devices, and walk on his heels and toes. Tr. 283. However, Plaintiff had trouble
squatting/arising from a squatting position and had only 70% grip strength in his right hand. Tr. 283.
Dr. Hoang diagnosed Plaintiff with cardiac arrhythmia associated with cardiac aneurysm, ankylosis
of the first finger of the right hand, chronic bilateral knee pain (post-traumatic surgical), and
depression. Tr. 284. He assessed severe physical limitations for work. Tr. 284.
In July 2010, Plaintiff underwent an additional consultative physical examination with
Rebecca Floyd, M.D. Tr. 331-333. On examination, Plaintiff had normal limb function, normal
strength in his upper and lower extremities, and full grip strength in both hands. Tr. 331. He had
normal range of motion in his spine and all extremities, with the exception of first metacarpal PIP
stiffness. Tr. 332. Heart sounds were normal, with regular rhythm and rate and no murmurs. Tr.
331. An echocardiogram revealed global hypokinesis, mildly depressed left ventricular systolic
function with an ejection fraction estimated at 45%, and trace mitral and triscuspid regurgitation.
Tr. 328. Dr. Floyd diagnosed Plaintiff with right first finger stiffness from a mal-healing deformity,
arthritis of the knee, coronary artery disease, arrhythmia, and tobacco abuse. Tr. 333. She noted
mild fingering limitations on the right, but found no other restrictions. Tr. 333.
On March 15, 2011, Plaintiff presented to Sparks Regional Medical Center with complaints
of chest pain and shortness of breath. Tr. 410. Chest x-rays revealed evidence of chronic obstructive
pulmonary disease (“COPD”). Tr. 410. Plaintiff underwent a transthoracic echocardiogram and
cardiovascular catheterization, which revealed markedly reduced left ventricular systolic function
with an ejection fraction estimated at 30%, severe diffuse hypokinesis with variation and more
akinetic at the apex, and a medium-sized irregular mass on the apical wall, possibly representing a
thrombus. Tr. 411-414. There are no further medical records from this hospitalization.
The ALJ has a duty to fully and fairly develop the record, even if a claimant is represented
by counsel. Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998). “It is well-settled that the ALJ's
duty to fully and fairly develop the record includes the responsibility of ensuring that the record
includes evidence addressing the alleged impairments at issue from either a treating or examining
physician. Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir.2000) (holding that it was improper for an
ALJ to rely on the opinions of reviewing physicians alone). While the Secretary is under no duty
to go to inordinate lengths to develop a claimant's case, he must “make an investigation that is not
wholly inadequate under the circumstances.” Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994)
(quoting Miranda v. Secretary of Health, Educ. & Welfare, 514 F.2d 996, 998 (1st Cir. 1975)).
There is no bright-line test for determining when the Secretary has failed to adequately develop the
record; the determination must be made on a case by case basis. Battles, 36 F.3d at 45 (quoting
Lashley v. Secretary of Health & Human Serv., 708 F.2d 1048, 1052 (6th Cir.1983)).
After reviewing the evidence of record, the undersigned finds that the ALJ did not adequately
develop the record concerning Plaintiff’s March 15, 2011 hospitalization. For unknown reasons, the
complete records from this hospitalization were not provided in the administrative transcript. The
only records available consist of one page of illegible admittance notes and the results of the
cardiovascular catheterization and transthoracic echocardiogram. Tr. 410-414. No discharge
summary was provided, which would have contained information regarding diagnoses,
recommendations, and prognosis. As such, there is considerable ambiguity as to whether Plaintiff
suffered a myocardial infarction, as he alleges.
Moreover, since the consultative physical
examinations and agency review were conducted prior to this admittance, there are no medical
opinions on record as to its clinical significance and impact on Plaintiff’s functional abilities. Given
the significant test results, including markedly reduced left ventricular systolic function with an
ejection fraction estimated at 30%, severe diffuse hypokinesis, and a possible thrombus, the
undersigned finds that more development of the record is required. Tr. 411-414.
On remand, the ALJ should obtain the complete medical file from Plaintiff’s March 15, 2011
hospitalization. Once these records have been obtained and reviewed, the ALJ should reconsider
Plaintiff’s RFC, based on all relevant evidence, including medical records, opinions of treating
medical personnel, and Plaintiff’s description of his own limitations. Dunahoo v. Apfel, 241 F.3d
1033, 1039 (8th Cir. 2001).
Accordingly, the undersigned concludes 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).
IT IS SO ORDERED this 12th day of March 2013.
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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