Combs v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on August 8, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 12-2169
CAROLYN W. COLVIN1, Commissioner
Social Security Administration
Plaintiff, Tina Combs, 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 claim for a period of disability, disability insurance benefits (“DIB”), and
supplemental security income (“SSI”) benefits 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. § 405(g).
Plaintiff filed her original applications for DIB and SSI on December 8, 2009, alleging
a disability onset date of August 15, 2009, due to bulging and thinning disks. Tr. 96-107, 139,
156-157, 172-173, 189, 197. Her applications were initially denied and that denial was upheld
upon reconsideration. Tr. 39-49, 51-54. An administrative hearing was held on October 7, 2010.
Tr. 22-38, 64-65. Plaintiff was present and represented by counsel. At this time, Plaintiff was
35 years old and possessed a limited education. Tr. 15, 25, 144. She had past relevant work
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.
(“PRW”) experience as a cashier and certified nurse’s aide (“CNA”). Tr. 15, 28-29, 140, 146153.
On December 20, 2010, the ALJ found that Plaintiff’s lumbar osteoarthritis, morbid
obesity, chronic obstructive pulmonary disease (“COPD”), and situational depression were
severe, but did not meet or medically equal one of the listed impairments in Appendix 1, Subpart
P, Regulation No. 4. Tr. 10-12. After partially discrediting Plaintiff’s subjective complaints, the
ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to
occasionally lift/carry ten pounds, frequently lift/carry less than ten pounds, sit
for six hours during an eight-hour workday, and stand/walk for two hours during
and eight-hour workday. She can occasionally climb, balance, crawl, kneel,
stoop, and crouch, but she must avoid concentrated exposure to dusts, odors,
gases, and pulmonary irritants. She can do work where interpersonal contact is
incidental to the work performed; complexity of tasks is learned and performed
by rote, with few variables and little judgment required; and supervision required
is simple, direct, and concrete.
Tr. 12-15. With the assistance of a vocational expert, the ALJ found Plaintiff could perform
work as an assembler or driver. Tr. 16.
The Appeals Council denied Plaintiff’s request for review on June 11, 2012. Tr. 1-4.
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. 7, 10.
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
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. 2000).
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 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).
In the present case, Plaintiff suffered from an impairment to her lower back complicated
by morbid obesity. Records from the Good Samaritan Clinic dating back to February 2009,
reveal consistent complaints of pain radiating into her right hip and down her leg. In October
of 2009, a lumber MRI revealed disk desiccation at the L5-S1 level with a right lateral recess
disk herniation that contacted and deviated the right Sl nerve root as well as right foraminal
stenosis. Tr. 217, 252.
Between February 2009 and February 2010, physical examinations revealed tenderness
to palpation in the lower back. Tr. 246-253. Her treatment included prescriptions for
nonsteroidal antiinflammatory drugs and muscle relaxers. The doctor also noted that a charity
application was completed in an attempt to qualify Plaintiff for services through the University
of Arkansas Medical School. However, Plaintiff testified that she was unable to receive said
services due to the absence of a vacancy within the program. Tr. 30-31.
On January 25, 2010, Plaintiff underwent a general physical examination with Dr. C.R.
Magness. Tr. 218-225. An examination revealed an abnormal gait due to her back and right leg,
a greatly decreased range of motion in both ankles and her lumbar spine, a poor ability to stand
and walk without an assistive device, and an inability to walk on heel and toes and arise from a
squatting position. Dr. Magness diagnosed Plaintiff with DDD at the L4-5 level with right
lower radiculopathy, obesity, COPD, and situational depression/marginal IQ. Tr. 224. . He then
assessed her with severe limitations in the ability to walk, sit, carry, and lift and moderate to
severe limitations in the ability to stand. Tr. 224.
Between June 2010 and January 2011, Plaintiff was treated in the emergency room on
at least four occasions due to back pain. Tr. 298-367. In June, Plaintiff injured her lower back.
An exam revealed severe tenderness to palpation of the sacrum. X-rays were negative, and she
received a Demerol and Phenergan injection and prescriptions for Percocet and Lorazepam for
a diagnosis of a sacrum contusion. In August, she returned with complaints of lower back pain
and difficulty voiding. Plaintiff was diagnosed with acute pyelonephritis and a urinary tract
infection and prescribed antibiotics and Hydrocodone.
In January 2011, Plaintiff slipped on icy steps and fell. Tr. 352-367. A physical exam
revealed tenderness and pain to palpation of the left lumbosacral paraspinous and midline.
Records indicate that she had been in the emergency room the night prior and received an
injection for back pain. At this time, Plaintiff rated her pain as an 8 on a 10-point scale and
indicated that it was aggravated by certain positions, twisting, and bending. She was given
injections of Nubain, Phenergan, and Norflex and prescriptions for Hydrocodone, Prednisone,
In light of Dr. Magness’s assessment of severe limitations regarding Plaintiff’s ability to
sit and Plaintiff’s reports of hip pain associated with prolonged sitting, we believe that remand
is necessary to allow the ALJ to clarify what Dr. Magness meant by a “severe” impairment. See
Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (ALJ should recontact a treating or
consulting physician if a critical issue is undeveloped or underdeveloped). As Dr. Magenss’s
assessment is the only RFC assessment completed by an examining doctor, it is imperative that
the ALJ obtain clarification and not make any assumptions regarding the doctor’s conclusions.
See Wildman v. Astrue, 596 F.3d 959, 967 (8th Cir. 2010) (opinions of non-examining physicians
deserve little weight in the overall evaluation of disability). Further, given the evidence
indicating that Plaintiff’s ability to sit for extended periods of time is impacted by her
impairment, inquiry should also be made of Dr. Magness as to whether Plaintiff would require
a sit/stand option.
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 8th day of August 2013.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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