Langley v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable James R. Marschewski on July 16, 2013. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
SANDRA M. LANGLEY
Civil No. 2:12-cv-02123-JRM
CAROLYN W. COLVIN, Commissioner of
Social Security Administration1
Factual and Procedural Background
Plaintiff, Sandra M. Langley, 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 her application for disability insurance benefits (“DIB”) under Title II of the Social Security
Act (“the Act”).
Plaintiff protectively filed her application on April 8, 2009, alleging a disability onset date
of June 5, 2008, due to arthritis in her shoulders and elbows, joint pain, chronic obstructive
pulmonary disease (“COPD”), and back pain. Tr. 8, 129. On the alleged onset date, Plaintiff was
forty-six years old with a limited education. Tr. 15.
Plaintiff’s applications were denied at the initial and reconsideration levels. Tr. 8, 52-54.
At Plaintiff’s request, an administrative hearing was held on June 29, 2010. Tr. 17-49. Plaintiff was
present at this hearing and represented by counsel. The ALJ rendered an unfavorable decision on
November 16, 2010, finding Plaintiff was not disabled within the meaning of the Act. Tr. 5-16.
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.
Subsequently, the Appeals Council denied Plaintiff’s Request for Review on May 25, 2012, 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
she 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 her 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 her past relevant work; and (5) if the
claimant cannot perform her 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 her
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 June 5, 2008, her alleged onset date. Tr. 10. At step two, the ALJ found Plaintiff
suffers from the following “severe” impairments: arthralgia, tendinosis/tendinitis, COPD, and back
pain. Tr. 10. At step three, he determined Plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed impairment. Tr. 10-12.
At step four, the ALJ found Plaintiff had the RFC to perform light work as defined in 20
C.F.R. § 404.1567(b), except she could perform no rapid, repetitive handling and fingering and no
overhead reaching, but could perform frequent, but not constant, reaching in all other directions. Tr.
12-15. Additionally, the ALJ determined Plaintiff must avoid concentrated exposure to temperature
extremes, wetness, humidity, fumes, odors, dusts, gases, and poor ventilation. Tr. 12-15.
Based on this RFC assessment, the ALJ determined Plaintiff could not perform any of her
past relevant work. Tr. 15. However, after consulting a vocational expert, the ALJ found jobs
existing in significant numbers in the national economy that Plaintiff could perform.2 Accordingly,
the ALJ determined Plaintiff was not under a disability from June 5, 2008, the alleged onset date,
through November 16, 2010, the date of the administrative decision. Tr. 16.
On appeal to this Court, Plaintiff argues that the ALJ erred by: (A) failing to address her
treating physician’s RFC assessment; (B) improperly dismissing her subjective complaints; and (C)
identifying jobs that are inconsistent with her RFC. See Pl.’s Br. 9-20. The Commissioner responds
that substantial evidence supports the ALJ’s decision. See Def.’s Br. 4-19. For the following
reasons, the court finds that substantial evidence does not support the ALJ’s decision.
At the fourth step of the evaluation, a disability claimant has the burden of establishing her
RFC. Eichelberger, 390 F.3d at 591; Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). A
claimant’s RFC is the most she can do despite her limitations. 20 C.F.R. § 404.1545(a)(1). The ALJ
determines a claimant’s RFC based on “all relevant evidence, including medical records,
observations of treating physicians and others, and the claimant’s own descriptions of his or her
limitations.” Masterson, 363 F.3d at 737. The Eighth Circuit has stated that “a claimant’s residual
functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Thus,
although the ALJ bears the primary responsibility for determining a claimant’s RFC, there must be
“some medical evidence” to support the ALJ’s determination. Eichelberger, 390 F.3d at 591; Dykes
v. Apfel, 223 F.3d 865, 867 (8th Cir 2000).
The ALJ determined Plaintiff could perform the requirements of representative light occupations such as
bench assembler, of which there are 6,300 jobs in Arkansas and 300,000 jobs in the national economy,
maid/housecleaner/laundry worker, of which there are 3,000 jobs in Arkansas and 305,000 jobs in the national
economy, and pressing machine operator, of which there are 1,000 jobs in Arkansas and 67,500 jobs in the national
economy. Tr. 16, 43-44.
In this instance, the ALJ did not acknowledge, much less discuss, the RFC assessment
completed by Plaintiff’s treating physician, Dr. Stephanie Frisbie, on September 15, 2010. Tr. 380386. A treating physician’s opinion is given controlling weight if it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence” in a clamant’s record. Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009); 20
C.F.R. § 404.1527(d)(2). The record must be evaluated as a whole to determine whether the treating
physician’s opinion should be controlling. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005). A
treating physician’s evaluation may be disregarded where other medical assessments “are supported
by better or more thorough medical evidence, or where a treating physician renders inconsistent
opinions that undermine the credibility of such opinions.” Id. at 920-21 (quoting Prosch, 201 F.3d
at 1013). In any case, an ALJ must always “give good reasons” for the weight afforded to the
treating physician’s opinion. 20 C.F.R. § 404.1527(d)(2).
The Commissioner concedes that the ALJ did not discuss Dr. Frisbie’s RFC assessment, and
attempts to de-emphasize the magnitude of this omission by noting that the ALJ did consider the
opinion of Dr. Deneke, the treating specialist. See Def.’s Br. 12-13. This argument is unpersuasive.
While it is the ALJ’s duty to resolve conflicts among the various opinions of treating physicians,
Heino v. Astrue, 578 F.3d 873, 879 (8th Cir. 2009), the ALJ must first acknowledge and
consider those opinions. From review of the record, the undersigned cannot determine whether the
ALJ was even aware of Dr. Frisbee’s report, though it was made a part of the administrative record
prior to the ALJ’s November 16, 2010 decision. Thus, it is ambiguous as to whether the ALJ
considered Dr. Frisbee’s opinion at all, and, if so, what weight he attached to it. This omission
constitutes reversible error. As such, the undersigned finds that substantial evidence does not
support the ALJ’s decision and remands this case for further consideration.
On remand, the ALJ should consider Dr. Frisbee’s opinion and “give good reasons” for the
weight attached to her RFC assessment. 20 C.F.R. § 404.1527(d)(2); See Prosch, 201 F.3d at 1013
(“Whether the ALJ grants a treating physician’s opinion substantial or little weight, the regulations
provide that the ALJ must ‘always give good reasons’ for the particular weight given to a treating
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 16th day of July 2013.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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