Peevy v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on February 19, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MICHAEL L. PEEVY
Civil No. 12-2043
CAROLYN W. COLVIN1, Commissioner
Social Security Administration
Plaintiff, Michael Peevy, 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.
The Plaintiff filed his applications for DIB and SSI on March 3, 2010, alleging an onset date of
September 30, 2007, due to back pain, carpal tunnel syndrome (“CTS”) in his right hand, heel and ankle
pain, and blurred vision in his left eye due to eye surgery to remove a pterygium. Tr. 10, 133, 135, 198,
203, 205, 212-213, 224, 227. His claims were denied both initially and upon reconsideration. An
administrative hearing was then held on November 4, 2010. Tr. 22-69. Plaintiff was present and
represented by counsel.
Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. 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.
At the time of the hearing, Plaintiff was 50 years of age and possessed an eleventh grade
education. Tr. 15, 26, 133, 199. He had past relevant work (“PRW”) as a security guard, fast food cook,
grocery store worker, and drilling holes for light poles. Tr. 28-36, 179-188, 200.
On October 22, 2010, the Administrative Law Judge (“ALJ”) concluded that, although severe,
Plaintiff’s degenerative disk disease (“DDD”) of the lumbar spine with radiculopathy, right heel pain,
right CTS, status post surgery bilateral pterygium left greater than right, and history of hernia surgery
did not meet or equal any Appendix 1 listing. Tr. 12-13. The ALJ determined that Plaintiff maintained
the residual functional capacity (“RFC”) to perform sedentary work involving only occasional climbing,
balancing, stooping, kneeling, crouching, and crawling and no overhead work, work requiring excellent
vision, or work requiring rapid, repetitive flexion-extension of his right wrist. Tr. 13-15. With the
assistance of a vocational expert, the ALJ then found that Plaintiff could perform work as a surveillance
system monitor, escort vehicle driver, and assembler. Tr. 15-16. However, beginning on September 1,
2010, when Plaintiff turned 50 and his age category changed, the ALJ concluded there were not a
significant number of jobs in the national economy that he could perform, rendering his disabled as of
this date. Tr .16.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on January 10, 2012. Tr. 1-5. 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 No. 10, 12.
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs and the ALJ’s opinion, and are repeated here only to the extent necessary
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 determination. 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).
Records reveal that Plaintiff suffered from DDD of the lumbar spine with radiculopathy,
resulting from a work related injury in November 2006 involving an auger. Tr. 311. We note that the
record contains only the RFC assessment of a non-examining, consultative doctor. See Jenkins v. Apfel,
196 F.3d 922, 925 (8th Cir. 1999) (holding that the opinion of a consulting physician who examined the
plaintiff once or not at all does not generally constitute substantial evidence). Although Plaintiff did
undergo a general physical exam with Dr. Hoang on June 9, 2010, he failed to comment on Plaintiff’s
limitations, aside from stating that he would have “moderate physical limitations for work.” Tr. 249-253.
However, Dr. Hoang did report a normal range of motion in all areas, a negative straight leg raise test
bilaterally, no muscle atrophy or weakness, no sensory abnormalities or gait/coordination difficulties,
the ability to walk on his heels and toes, and the ability to squat and arise from a squatting position.
On June 16, 2010, Plaintiff reported an exacerbation of his back pain, at which time Dr. John
Hundley noted tenderness to the lumbosacral spine on palpation of the spinous process at the L1 and L3
levels, pain elicited by active flexion and extension, a positive straight leg raise test on the right, an
abnormal gait with a limp on the right, and a wide based ataxic gait. Dr. Hundley prescribed Flexeril,
Lortab, and a Medrol Dosepak.
In September 2010, Plaintiff was referred to Dr. Arthur Johnson, a neurosurgeon, who assessed
him with right lumbar radiculopathy. Tr. 301-303. Although Plaintiff’s exact physical limitations are
not evident from the record, Dr. Johnson noted that Plaintiff exhibited an abnormal gait favoring his left
leg, decreased flexion and extension of the lumbar torso, decreased sensation to pinprick and vibratory
along the right lateral thigh and right posterior calf, positive right and left straight leg raising tests, pain
on palpation of the lumbar spine, and was unable to walk on his heels and toes. Tr. 302. He also voiced
his belief that Plaintiff’s impairments would preclude him from lifting, pushing, or pulling2.
An MRI of Plaintiff’s lumbar spine conducted on October 6, 2010, revealed DDD at L2-3, L3-4,
L4-5, and L5-S1 with mild facet hypertrophy, a central disk bulge and foraminal narrowing secondary
While we note that Dr. Johnson refused to complete Plaintiff’s disability paperwork during Plaintiff’s
appointment, he was advised that he could drop said paperwork off at the front desk and go through the proper channels to
have it completed. The record does not, however, reveal what those channels were or whether Plaintiff left the paperwork at
the front desk.
to facet hypertrophy at the L4-5 level, a central left disk bulge with mild bilateral foraminal narrowing
secondary to posterior element hypertrophy at the L5-S1 level, and a sclerotic inferior endplate at the
L5 level. Tr. 298-300. While Plaintiff did report some resolution of his radiculopathy via the use of a
Medrol Dosepak, it appears that his lower back pain continued. Plaintiff was referred to Dr. Fisher for
epidural steroid injections, and was given a prescription for Lortab. Dr. Johnson opined that a
disckogram would be the next step, if the injections were unsuccessful.
Given that it appears that Plaintiff experienced an exacerbation of his back pain in June 2010,,
we believe that remand in necessary to allow the ALJ to reevaluate the record. On remand, the ALJ is
ordered to forward RFC assessments to Doctors Hundley and Johnson, asking them to assess Plaintiff’s
ability to perform work-related activities prior to September 2010. They should also be asked to opine
as to the onset date of any limitations they assign Plaintiff. If assessments can not be obtained from
Plaintiff’s treating doctors, then the ALJ will order a consultative orthopedic evaluation. Plaintiff’s
medical records should be forward to the consultant and a physical examination should be conducted to
determine Plaintiff’s RFC prior to September 2010. Again, the doctor should be asked to opine as to the
onset date of any limitations he or she imposes.
We also note that the ALJ determined that Plaintiff was disabled as of September 2010 because
Plaintiff turned 50 on September 1, 2010, classifying him under the regulations as an individual closely
approaching advanced age. Tr. 26. However, we also note that under the regulations, the age categories
are not applied mechanically in a borderline situation. 20 C.F.R. § 404.1563(b). Instead, if a claimant
is “within a few days to a few months of reaching an older age category, and using the older age category
would result in a determination or decision that [the claimant is] disabled, [the agency] will consider
whether to use the older age category after evaluating the overall impact of all the factors of [the
claimant’s] case.” Id. Here, it appears that Plaintiff’s condition worsened in June 2010, a mere three
months prior to his 50th birthday. See Phillips v. Astrue, 671 F.3d 699, 703-704 (8th Cir. 2012). We
can find nothing, aside from Plaintiff celebrating a birthday, that occurred between June 2010 and
September 2010 to explain the ALJ’s conclusion that Plaintiff was disabled as of September 2010. As
such, we believe that this constitutes a case of borderline age categorization that must be evaluated on
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).
DATED this 19th day of February 2013.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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