Craft v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on March 15, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
WILBURN B. CRAFT

v.

PLAINTIFF

CASE NO.

12-2067

CAROLYN W. COLVIN1, 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 his applications for DIB on November 29, 2010, alleging an onset date
of June 1, 2010 , due to plaintiff’s TMJ (T. 161) and pain in his neck/shoulders and lower back
(T. 192). Plaintiff’s applications were denied initially and on reconsideration. Plaintiff then
requested an administrative hearing, which was held on October 18 2011. Plaintiff was present
and represented by counsel.

1

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.

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At the time of the administrative hearing, plaintiff was 47 years of age and possessed a
6th Grade Education. The Plaintiff had past relevant work (“PRW”) experience as a Mechanic
(T. 162).
On November 4, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s DDD and TMJ did not meet or equal any Appendix 1 listing. T. 20. The ALJ
found that plaintiff maintained the residual functional capacity (“RFC”) to perform sedentary
work T. 20. With the assistance of a vocational expert, the ALJ then determined Plaintiff could
perform the requirements of representative occupation such as production and assembly worker
and inspector, checker, and weigher. T. 24-25.
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:
A. Step Two
At step two of the sequential evaluation process, the claimant bears the burden of proving
that he has a severe impairment. Nguyen v. Chater, 75 F.3d 429, 430-431 (8th Cir. 1996). An
impairment or combination of impairments is not severe if there is no more than a minimal effect
on the claimant’s ability to work. See, e.g., Nguyen, 75 F.3d at 431. A slight abnormality (or a
combination of slight abnormalities) that has no more than a minimal effect on the ability to do

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basic work activities is not a severe impairment. SSR 96-3p, 1996 WL 374181 (1996); SSR 8528, 1985 WL 56856 (1985). If the claimant is not suffering a severe impairment, he is not
eligible for disability insurance benefits. 20 C.F.R. § 404.1520(c).
The ALJ determined that the claimant had severe impairments of “ degenerative disc
disease of cervical spine, and temporomandibular joint (TMJ) dysfunction (20 CFR
404.1520(c)).” (T. 21). The Plaintiff first argues that the ALJ committed error because he did not
find that the Plaintiff’s “bilateral hips, bilateral shoulders, and back were also severe
impairments”. ECF No. 9, p. 10.
The Plaintiff cites an MRI on June 27, 2011 of the cervical spine (T. 125), the Left
Shoulder (T. 126), the Right Shoulder (T. 127), and the Bilateral Hips (T. 128). The MRI of the
Left Shoulder showed suspicion of superior labral posterior labral tear; tendinopathy of the distal
supraspinatus and infraspinatus tendons and mild arthropathy of the AC joint. (Tr. 126). MRI of
the Right Shoulder showed inferior paralabral cyst implying the presence of an inferior labral
tear, and suggestion of tear in the posterior-superior labrum, and this could be better further
evaluated with MR arthrography unless patient is to have arthroscopy regardless; mild
degenerative arthropahty of the AC joint. (Tr. 127). MRI of the Bilateral Hip showed Avasuclar
Necrosis of the superior weight-bearing portion of the femoral heads bilaterally; degenerative
disc space narrowing at L5-S1 incidentally noted.
The Defendant argues that the ALJ “considered the evidence when evaluating Plaintiff’s
RFC. (ECF No. 11, p. 6). The Plaintiff goes on to argue that although “the ALJ did not
specifically find this as a severe impairment at step two, the ALJ’s decision showed that he
considered this evidence and took it into account when he found that Plaintiff was limited to
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sedentary work (Tr. 20-21, 23, 128, 310).”
This, however, does not appear to be the case. The ALJ never references these subjective
medical findings. It does not appear that the ALJ was even aware of them because the medical
records were somehow attached to Exhibit 13B which was the Plaintiff’s “Acknowledgment of
Receipt (Notice of Hearing). (T. 122).
In addition, the ALJ discounted the opinion of Dr. Schmitz who provided an Attending
Physician’s Statement on July 19, 2011. (T. 308). Dr. Schmitz diagnosed the Plaintiff with (1)
Avascular Necrosis of Bilateral Hips, (2) Left shoulder superior and posterior labral tear and
tendinopathy of the distal supraspinatus and infraaspinatus tendons, (3) right shoulder with
inferior labral tear, and (4) TMJ. (Id.) and he suggested that the Plaintiff should be evaluated by
an orthopedist. (Id.).
The ALJ stated that “The claimant's current treating physician, James Schmitz, D.O.,
provided a medical source statement in which he assigned the claimant a number of diagnoses
and severe limitations. However, after evaluation of this opinion, I find that he (ALJ) is able to
give it little weight as the opinion was written after Dr. Schmitz had seen the claimant on only
one occasion; the opinion included a number of diagnoses unsupported by the medical evidence
of record”. (T. 23).
The medical evidence of the MRIs performed on June 27, 2011 (T. 125-128) do in fact
support the medical opinion of Dr. Schmitz. What is abundantly clear is that the ALJ never
considered this evidence and remand is necessary to allow the ALJ to correct this error.
IV. Conclusion:
Accordingly, the court finds that the ALJ’s decision is not supported by substantial
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evidence, and therefore, the denial of benefits to the Plaintiff should be reversed and this matter
should be remanded to the Commissioner for further consideration.

Dated this March 15, 2013.

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

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