David v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on October 2, 2013. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CARL L. DAVID
CAROLYN W. COLVIN1, Commissioner
of Social Security Administration
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 and SSI on January 19, 2010, alleging an onset
date of February 1, 2003, due to plaintiff’s back problems, copd, tendonitis in right arm, and
possible bladder cancer (T. 179). Plaintiff’s applications were denied initially and on
reconsideration. Plaintiff then requested an administrative hearing, which was held on March 3,
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 administrative hearing, plaintiff was 49 years of age and possessed a 9th
Grade education (T. 31). The Plaintiff had past relevant work (“PRW”) experience as a lead
man and truck driver (T. 181).
On March 15, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s COPD, back pain, and mood disorder did not meet or equal any Appendix 1
listing. T. 12. The ALJ found that plaintiff maintained the residual functional capacity (“RFC”)
to perform medium work with restriction. T. 14. With the assistance of a vocational expert, the
ALJ then determined Plaintiff could perform the requirements of representative occupation such
as Kitchen Helper, Industrial Cleaner, and Hand Packer. T. 19.
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).
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).
The ALJ determined that the Plaintiff had the Residual Functional Capacity to:
“perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c). The claimant can occasionally lift/carry 50 pounds and frequently 25
pounds. He can sit for 6 hours and stand/walk for 6 hours. He can frequently
climb, balance, crawl, kneel, stoop, and crouch. He must avoid concentrated
exposure to fumes, odors, gasses, dusts and pulmonary irritants. He can do work
where interpersonal contact is incidental to the work performed; the complexity of
tasks is learned and performed by rote, with few variables and little judgment is
required; and the supervision required is simple, direct, and concrete.” (T. 14).
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is defined as the individual’s maximum remaining ability to do sustained
work activity in an ordinary work setting “on a regular and continuing basis.” 20 C.F.R. §§
404.1545 and 416.945; Social Security Ruling (SSR) 96-8p (1996). It is assessed using all
relevant evidence in the record. Id. This includes medical records, observations of treating
physicians and others, and the claimant’s own descriptions of her limitations. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th
Cir. 2004). 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).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering
medical evidence exclusively. Cox v. Astrue, 495 F. 3d 614 at 619 citing Lauer v. Apfel, 245
F.3d 700 at 704; Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir.2000) (per curiam) (“To the extent
[claimant] is arguing that residual functional capacity may be proved only by medical evidence,
we disagree.”). Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner.*620 20 C.F.R. §§
416.927(e)(2), 416.946 (2006).
On April 29, 2010 Dr. David Hicks, a non-examining consultive physician, provided a
Physical RFC Assessment claiming the Plaintiff could lift 50 pounds occasionally, 25 pounds
frequently and that he could stand and/or walk and sit for 6 hours in an 8-hour workday. (T. 305).
He found no Postural Limitation (T. 306) and the only Environmental limitation was to avoid
even moderate exposure to fumes, etc. (T. 308). Dr. Hicks acknowledges that he had no medical
source statements to review (T. 310) but he did have the Plaintiff’s MRI from March 2010 (T.
287). That MRI showed a left lateral disc herniation at L3-4 and disc bulging and degenerative
change at L2-3, L4-5, and L5-S1 (T. 281). In August 2010 Dr. Payne reviewed and affirmed the
assessment of Dr. Hicks. (T. 367).
We have stated many times that the results of a one-time medical evaluation do not
constitute substantial evidence on which the ALJ can permissibly base his decision. See, e.g.,
Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir.1999) (stating that the opinion of a consultative
physician does not generally satisfy the substantial evidence requirement). The Eighth Circuit
Court of Appeals has, however, upheld the Commissioner's RFC assessment in cases where the
ALJ did not rely on a treating physician's functional assessment of the claimant's abilities and
limitations. See Page v. Astrue, 484 F.3d at 1043 (the medical evidence, state agency physician
opinions, and claimant's own testimony were sufficient to determine RFC); Stormo v. Barnhart,
377 F.3d 801, 807-08 (8th Cir. 2004) (medical evidence, state agency physicians' assessments,
and claimant's reported activities of daily living supported RFC finding); Masterson v. Barnhart,
363 F.3d 731, 738 (8th Cir. 2004) (ALJ's RFC assessment properly relied upon assessments of
consultative physicians and a medical expert, which did not conflict with the treating physician's
The Plaintiff’s treating physician saw the Plaintiff on April 19, 2010, after his MRI. At
noted above the MRI showed a left lateral disc herniation2 at L3-4 and disc bulging and
degenerative change at L2-3, L4-5, and L5-S1 (T. 281).3 Dr. Noonan noted that the Plaintiff’s
back pain began three months ago but that he had no numbness. His ROM was normal, and the
Straight Leg Test was negative. His motor strength was 5/5. (T. 341). He prescribed a Spiriva
Hand inhaler for the Plaintiff’s COPD and Neurontin4 300 mg 2 TID for 30 days. (T. 342).
In July Dr. Noonan again noted that his ROM was “within normal limits” but he did have
CVA tenderness and paraspinous muscle spasm but his Straight Leg Test was negative and his
motor strength was 5/5 and symmetric. (T. 344). The Plaintiff acknowledged that he was unable
to afford his pain medication and would not be able to “return to the office after today’s visit
until disability is approved.” (Id.). It does not appear that there is another medical record from the
Plaintiff’s treating physician after July 2010.
See Pate-Fires v. Astrue, 564 F.3d 935 (8th Cir. 2009) (quoting Hutsell v. Massanari, 259
F.3d 707, 712 (8th Cir. 2001) (“A treating doctor’s silence on the claimant’s work capacity does
not constitute substantial evidence supporting ALJ’s functional capacity determination when the
doctor was not asked to express an opinion on the matter and did not do so, particularly when
that doctor did not discharge the claimant from treatment.”).
Not only is Dr. Noonan silent on the Plaintiff’s work capacity but no one sought a RFC
Extension of disc material beyond the posterior annulus fibrosus and posterior longitudinal ligament and
into the spinal canal.
The Plaintiff had a disc herniation and desiccation (T. 242) in this area in 1992 and had a laminectomy;
discectomy performed at that time. (T. 243).
Neurontin (gabapentin) is an anti-epileptic medication, also called an anticonvulsant. It affects chemicals
and nerves in the body that are involved in the cause of seizures and some types of pain.
Assessment from Dr. Noonan. If a treating physician has not issued an opinion which can be
adequately related to the disability standard, the ALJ is obligated to address a precise inquiry to
the physician so as to clarify the record. See Vaughn v. Heckler, 741 F.2d 177, 179 (8th Cir.
1984). “An ALJ should recontact a treating or consulting physician if a critical issue is
undeveloped. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir.2005).” Johnson v. Astrue, 627
F.3d 316, 319–20 (8th Cir.2010).
In this case the Plaintiff had disc surgery in 1992(243) which has, and continues to
deteriorate (T. 281). It is unclear what effect the Plaintiff’s disc herniation and DDD has upon his
ability to work and the only opinion is from a non-examining consultive evaluation.
The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47 F.3d
935, 938 (8th Cir. 1995)(ALJ must fully and fairly develop the record so that a just determination
of disability may be made). This duty exist "even if ... the claimant is represented by counsel."
Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.1992) (quoting Warner v. Heckler, 722 F.2d 428,
431 (8th Cir.1983)). There is no bright line rule indicating when the Commissioner has or has not
adequately developed the record; rather, such an assessment is made on a case-by-case basis.
Battles v. Shalala, 36 F.3d 43 at 45 (C.A.8 (Ark.), 1994). In this case the court believes that the
case should be remanded to allow the ALJ to contact the Plaintiff’s treating physician to obtain
an opinion on the Plaintiff’s ability to perform work related activity. In all other regards the
court finds the ALJ’s decision to be well reasoned and supported by the evidence.
Accordingly, the court finds that the ALJ’s decision is not supported by substantial
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 2nd day of October 2013.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE
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