Winberry v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable James R. Marschewski on February 11, 2013. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 12-2049
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Sheryl Winberry, 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 claims
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 her applications for DIB and SSI on March 5, 2008, alleging an onset date January
1, 2006, due to depression, thyroid problems, a pinched nerve in the right shoulder, carpal tunnel
syndrome of the right wrist, migraine headaches, dyslexia, black outs, confusion, dizziness, and
degenerative disk disease (“DDD”) resulting in back pain. Tr. 146-155, 174, 183-184, 213-214, 237.
The Commissioner denied Plaintiff’s application initially and on reconsideration. An administrative
hearing was held on September 16, 2009, resulting in an unfavorable decision. Tr. 17-52, 60-71, 614649. Said decision was appealed to this court, resulting in a judgment remanding the case back to the
agency. Tr. 595-607. A supplemental hearing was then held on December 1, 2011. Tr. 569-591.
Plaintiff was present and represented by counsel.
At the time of the supplemental hearing, Plaintiff was 37 years old and possessed a high school
education. Tr. 175. Plaintiff had past relevant work (“PRW”) experience as a daycare worker, flower
shop delivery driver, and home health aid. Tr. 180, 193-200.
On December 28, 2011, the ALJ found Plaintiff’s fibromyalgia, personality disorder, cognitive
disorder, depression, anxiety, DDD, right shoulder pain, knee pain, and ADHD were severe, but did not
meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. Tr.
551-555. After partially discrediting Plaintiff’s subjective complaints, the ALJ determined that Plaintiff
retained the residual functional capacity (“RFC”) to perform a limited range of sedentary work. Tr. 555561. The ALJ then found Plaintiff could perform work as a machine tenderer, assembler, and
surveillance system monitor. Tr. 562.
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. 10, 12.
The court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ appeal briefs and the ALJ’s decision and are repeated here only to the extent
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.
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
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).
Of particular concern to the undersigned is the ALJ’s failure to follow the directives contained
in our previous remand order. Plaintiff has been diagnosed with personality disorder, which the ALJ
concluded is severe. Tr. 254-260, 386-403, 421-427. In our previous order, the ALJ was directed to
recontact Plaintiff’s treating psychiatrist and counselor to obtain more information concerning the
symptoms of her personality disorder. He failed to do so. As such, the record remains underdeveloped
with regard to Plaintiff’s personality disorder. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)
(ALJ owes duty to develop record fully and fairly to ensure decision is an informed decision based on
While we do note that the ALJ identifies several behaviors to justify his dismissal of Plaintiff’s
subjective complaints, he fails to acknowledge that these behaviors may also be symptoms of her
personality disorder which could not be held against her. DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS IV-R (“DSM IV-TR”) 685 (2000 4th ed.) (“A personality
Disorder is an enduring pattern of inner experience and behavior that deviates markedly from the
expectations of a individual’s culture, is pervasive and inflexible, has an onset in adolescence or early
adulthood, is stable over time, and leads to distress or impairment.”). As noted in our previous opinion,
personality disorder not otherwise specified is a disorder that does not meet all of the criteria for one
specific personality disorder, rather includes symptoms from two or more of the personality disorders.
DSM at 729. Symptoms can include a pervasive pattern of excessive emotionality, attention seeking
behavior, and the need for others to assume responsibility for most of the major areas of in one’s life.
Id. at 706, 725. Because the ALJ failed to recontact Plaintiff’s treating psychiatrist and counselor, the
record does not make clear whether Plaintiff’s resistance to treatment, desire to have others fix her
problems, and possible exaggeration of symptoms, are symptoms of her personality disorder or are
unrelated behaviors that may properly be used to discredit her subjective complaints.1 See Haley v.
Massanari, 258 F.3d 742, 748 (8th Cir. 2001) (proper inquiry is whether the record contained sufficient
evidence for the ALJ to make an informed decision). Accordingly, we can not say the ALJ had sufficient
evidence upon which to base his decision, and remand is again necessary.
On remand, the ALJ will recontact Plaintiff’s treating psychiatrist and counselor and ask them
to assess Plaintiff’s mental functioning and to determine whether her alleged treatment resistance, desire
to have others fix her problems, and exaggeration of her symptoms are symptoms of her personality
disorder or behaviors that have no connection to her illness. Only then will it be possible to accurately
determine Plaintiff’s RFC.
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 11th day of February 2013.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
We find this to be of particular concern, given that, in 2009, he treating counselor opined that Plaintiff had
marked limitations with regard to completing a normal workday and workweek without interruption from psychologically
based symptoms, performing at a consistent pace without an unreasonable number and length of rest periods, interacting
appropriately with the general public, traveling in unfamiliar places or using public transportation, and setting realistic goals
or making plans independently of others. Tr. 513-515.
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