Deel v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on November 21, 2013. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
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 an applications for DIB and SSI on February 25, 2010, alleging an
onset date of January 31, 2007, due to plaintiff’s psoriatic arthritis, fibromyalgia, and depression.
Plaintiff’s applications were denied initially and on reconsideration. Plaintiff then requested an
administrative hearing, which was held on July 21, 2011. Plaintiff was present and represented
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 51 years of age and possessed a
High School Education plus 1 year of college. The Plaintiff had past relevant work (“PRW”)
experience as a Home Health Care worker, Director of Assisted Living and Executive Director of
Assisted Living. (T. 135).
On October 4, 2011, the Administrative Law Judge (“ALJ”) concluded that the Plaintiff
became disabled on June 1, 2010 (T. 12) but prior to that date, although severe, plaintiff’s
psoriatic arthritis, fibromyalgia, carpal tunnel syndrom and depression did not meet or equal any
Appendix 1 listing. T. 14-15. The ALJ found that, prior to June 1, 2010, the plaintiff maintained
the residual functional capacity (“RFC”) to perform a full range of sedentary work T. 15. With
the assistance of a vocational expert, the ALJ then determined Plaintiff could perform the
requirements of representative occupation such as . T. .
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 court has reviewed the Briefs filed by the Parties, the Transcript of the proceedings
before the Commission, including a review of the hearing before the ALJ, the medical records,
and relevant administrative records and finds the ALJ's decision is not supported by substantial
Of particular concern is the ALJ determination that the Plaintiff had the Residual
Functional Capacity (RFC) to perform sedentary work during the period in question.
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).
A Mental Diagnostic Evaluation was performed by Dr. Kathleen Kralik on June 28, 2010
(T. 342) who diagnosed the Plaintiff with Pain Disorder Associated with Both Psychological
Factors and a General Medical Condition, Substance Abuse Disorder, and Personality Disorder.
(T. 348-349). Dr. Kralik felt that her mental condition would have only mild to moderate effect
on her Adaptive Functioning. (T. 348). A Psychiatric Review Technique was performed by
Kevin Santulli, Ph.D. in July 2010 who diagnosed the Plaintiff with Depression (T. 360), Pain
disorder associated with both psychological factors and general medical condition (T. 363),
personality disorder, and substance abuse. (T. 365). Dr. Santulli also felt that her condition would
only have Mild to Moderate effect upon her Functional Limitation. (T. 367). Dr. Santulli also
provided a Physical RFC assessment stating that her limitations were only Mild to Moderate. (T.
The court has 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). This is especially true
when the consultative physician is the only examining doctor to contradict the treating physician.
Cox v. Barnhart 345 F.3d 606, 610 (C.A.8 (Ark.),2003).
The Plaintiff was treated by Dr. Ted Krell, from March 2006 until February 2010. (T.
315- 328). Generally, an ALJ is obliged to give controlling weight to a treating physician's
medical opinions that are supported by the record. See Randolph v. Barnhart, 386 F.3d 835, 839
(8th Cir.2004); 20 C.F.R. § 404.1527(d)(2). Dr. Krell is a board certified psychiatrist. Opinions
of specialists on issues within their areas of expertise are “generally” entitled to more weight than
the opinions of non-specialists. See 20 C.F.R. §§ 404.1527(d)(5), 416.927(d)(5). Guilliams v.
Barnhart 393 F.3d 798, 803 (C.A.8 (Mo.),2005), 20 C.F.R. § 404.1527
Dr. Krell provided a Mental Residual Function Capacity Questionnaire in October 2010
which provided that the Plaintiff was “seriously limited” in a number of areas and “unable to
meet competitive standards” in others. (T. 397-398). Dr. Krell’s opinion does not specifically
address the period between 2007 and 2010.
The ALJ discounted the opinion of Dr. Krell because one of his clinical notes in February
2007 showed she was “asymptomatic on Klonopin and Cymbalta”. (T. 326). He found that the
Doctor’s records “consistently report improvement with the medications. (Ex. 5F). (T. 19). This
conclusion is not supported by the record. The Progress Note for February 11, 2010 stated:
Lot has happened since I saw her last. Dr. Appleyard had increased Lyrica.
Apparently, she had had some personality changes and had become somewhat
aggressive and more irritable. Lyrica has been stopped. She is at this time
moderately depressed. She is very angry with her husband. She is not sleeping
well. She is not eating well. She is not suicidal. She is sad all of her waking hours.
She is very irritable and having crying spells. She reports increased pain from her
fibromyalgia since she stopped Lyrica. At this time, we talked about her perhaps
stopping Crestor and/or Lopid because of their effect on mood. She surly will
discuss that with Dr. Ali. I have given her option of either increasing Cymbaita or
moving to Pristiq. She would like to increase Cymbaita. I am giving her samples
of 30 mg tablets. I have listed all of her current medications. I will see her in
followup in two weeks.
There were some Progress Notes that reflected that she was “doing well” (T. 317),
showed “improvement” (T. 318), and had “better spirits”. (T. 319). Other Progress Notes,
however, indicated that she was “not feeling as well as she was” (T. 320), she was “unable to
tolerate 120mg of Cymbalta” because of “nausea, vomiting, and diarrhea” (T. 321), her mood
was “not normal” (T. 322), and that she “was sad most of her waking hours”. (T. 323). During
this time period the Plaintiff was treated by Dr. Krell she was on many prescribed medications
which were either altered or replaced by her treating physicians in an attempt to control her
physical and mental symptoms.
Under the Social Security regulations, the amount of weight given to a non-controlling
medical opinion is determined by applying the following factors: (1) whether the source has
examined the claimant; (2) the length, nature, and extent of the treatment relationship and the
frequency of examination; (3) the extent to which the relevant evidence, “particularly medical
signs and laboratory findings,” supports the opinion; (4) the extent to which the opinion is
consistent with the record as a whole; (5) whether the opinion is related to the source's area of
specialty; and (6) other factors “which tend to support or contradict the opinion.” 20 C.F.R. §§
404.1527(d), 416.927(d); See Owen v. Astrue 551 F.3d 792, 800 (C.A.8 (Iowa),2008) citing
Wagner, 499 F.3d at 848.
In this particular case all of the above factors are in the treating psychiatrist favor. The
ALJ, notably, did not discuss the Mental RFC questionnaire (T. 395) of Dr. Krell which was
rendered October 6, 2010. The ALJ gave great weight to the opinion of psychologist Kathleen
Kralik who felt that the “claimant had a closet drinking problem, which she failed to report to her
treating physician.” (T. 20). The ALJ assumes that the drinking problem is unknown to the
Plaintiff’s treating psychiatrist and that it would have an adverse effect upon his RFC
questionnaire. “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). If the ALJ is going to discount the opinion of the treating
psychiatrist the court believes remand is necessary to allow the ALJ to submit interrogatories to
the Plaintiff’s treating psychiatrist to determine if her binge drinking during his treatment time
would effect his RFC determination. He should be supplied a copy of Dr. Kralik’s report as well
as the Affidavit submitted by the Plaintiff contending that Dr. Kralik’s report did not accurately
reflect what she told Dr. Kralik.
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 November 21, 2013.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE
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