McKnight v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on January 13, 2014. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
LISA K. McKNIGHT
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 SSI on December 20, 2010 , alleging an onset date
of December 9, 2010, due to plaintiff’s back and arm pain. Plaintiff’s applications were denied
initially and on reconsideration. Plaintiff then requested an administrative hearing, which was
held on November 17, 2011. Plaintiff was present and represented by counsel.
At the time of the administrative hearing, plaintiff was 47 years of age and possessed a
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.
GED. The Plaintiff had past relevant work (“PRW”) experience as a housekeeper and lawn care
worker (T. 137).
On March 9, 2012, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s degenerative disc disease and chronic left elbow and knee pain did not meet or
equal any Appendix 1 listing. T. 13. The ALJ found that plaintiff maintained the residual
functional capacity (“RFC”) to perform sedentary work with additional restrictions T. 13. With
the assistance of a vocational expert, the ALJ then determined Plaintiff could perform the
requirements of representative occupation such as production & assembly worker, charge
account clerk and inspector/checker/weigher. 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 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
A. Development of the Record
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)). The ALJ is not required to act as Plaintiff’s counsel. See Clark v. Shalala,
28 F.3d 828, 830 (8th Cir. 1994) (ALJ not required to function as claimant’s substitute counsel,
but only to develop a reasonably complete record); see also Shannon v. Chater, 54 F.3d 484, 488
(8th Cir. 1995) (“reversal due to failure to develop the record is only warranted where such
failure is unfair or prejudicial”). That duty may include seeking clarification from treating
physicians if a crucial issue is undeveloped or underdeveloped. Smith v. Barnhart 435 F.3d 926,
930 (C.A.8 (Ark.),2006)
In this case the Plaintiff testified that she was in Sparks Hospital for 90 days prior to
surgery on her back in 2007(T. 34) but the records were not able to be produced. (T. 35). What
was produced were the surgical notes of Dr. Capocelli, M.D. who noted the plaintiff was
diagnosed with “lumbar osteomyelitis and thoracic osteomyelitis, T11-12, T12-L1 with
associated diskitis refractory to antibiotics” and he performed a bilateral decompression
laminectomy on November 15, 2007. (T. 230). Dr. Capocelli saw the Plaintiff at his clinic on
February 5, 2008 and an xray was taken of the lateral lumbosacral spine. (T. 228). Dr. Capocelli
noted “multilevel degenerative changes at L3-L4, L4-L5, and L5-S1 with small spurring noted at
L3-L4 and L4-L5 posteriorly without major canal impingement at L3-L4 and simply more to the
right in terms of spurring and the foraminal impingement at L4-L5 that is more central may cause
minimal abutment to the thecal sac.” His impression was mild foraminal impingement and
Degenerative changes. (T. 229). He noted that the Plaintiff had “a reasonable recover” and that
her overall pain is “generally better” but still had chronic pain. (T. 227).
It appears the Plaintiff applied for Disability based on her surgery sometime in 2008. She
was denied benefits and failed to appeal thus the denial final. (ECF No. 14, p. 13-14). On
February 13, 2009, however, the Plaintiff was a passenger in a motor vehicle accident and
transported to Sparks Hospital ER by ambulance. She was complaining of “pain, pain in right
hand, and loose teeth.” The hospital triage notes describe the pain as “generalized” and after
describing the accident the notes reflect “Existing injuries prior to trauma were none.” (T. 196).
There was no mention of the extensive back surgery she underwent 14 months prior. The
hospital records did reflect a normal ROM in her back. (T. 197). She was diagnosed with a head
contusion, left shoulder strain and dental fracture and discharged that date. (T. 198).
Approximately one month later the Plaintiff filed her SSI application contending her onset date
was December 9, 2010. (T. 116).
The Plaintiff was seen by Dr. Hoang for a General Physical Examination on March 1,
2011. (T. 208). He noted her ROM was normal (T. 210) and she had negative Straight-leg test
but did note some joint deformities. (T. 211). There was no muscle weakness or atrophy noted
and her gait was normal. (Id.). None of her neurologic test were abnormal except for the right
Patellar with he noted was absent. (Id.). Despite all of the normal findings Dr. Hoang stated that
she had “severe physical limitations for labor work”. (T. 212).
A Physical RFC Assessment was rendered by Dr. Jonathan Norcross, M.D. on March 8,
2011 finding that the Plaintiff could lift 50 pounds occasionally and 25 pounds frequently; that
she could stand and/or walk, and sit for 6 hours in an 8-hour workday; and that she had no
limitations on her ability to push and/or pull. (T. 216). He also found no Postural Limitations (T.
217) or Manipulative Limitations. (T. 218). Dr. Norcross’s opinion was reviewed and affirmed
by Dr. Bill Payne on April 13, 2011. (T. 225).
The Eighth Circuit has held that, “The opinion of a consulting physician who examines a
claimant once ... does not generally constitute substantial evidence.” Kelley v. Callahan, 133
F.3d 583, 589 (8th Cir.1998). See Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (holding
that the opinion of a consulting physician who examined the plaintiff once or not at all does not
generally constitute substantial evidence). The ALJ, following the case law, stated that:
“[L]ittle weight is afforded the opinions of the non-examining agency consultants
based upon the combined effect of the claimant's impairments. (Exhibits B6F &
B8F.) Finally, little weight is afforded the opinions expressed by Dr. Hoang as the
undersigned finds that the conclusions reached by Dr. Hoang are not supported by
the objective findings contained within his report. The undersigned finds that Dr.
Hoang's report appears to contain inconsistencies, and he appears to have relied
quite heavily on the subjective report of symptoms and limitations provided by the
claimant. Yet, as explained elsewhere in this decision, there exist good reasons for
questioning the reliability of the claimant's subjective complaints.” (T. 17).
The ALJ also found that the testimony of the Plaintiff was not credible and cited his
reasons. Assessing and resolving credibility issues is a matter that is properly within the purview
of the ALJ. Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996) (court will not substitute its
own credibility opinion for that of the ALJ). One of the basis for discrediting the Plaintiff’s
testimony the ALJ cited was that “the record does not contain any opinions from treating or
examining physicians indicating that the claimant is disabled or even has limitations greater than
those determined in this decision.” (T. 17). 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
In this case Dr. Capocelli performed extensive surgery on the Plaintiff’s back in 2007 and
within 14 months she was involved in a motor vehicle accident. No subsequent MRI was taken
of her back and no opinion from her treating orthopedic surgeon was sought. It is incumbent
upon the ALJ to establish by medical evidence that the claimant has the requisite RFC. 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). In this case Dr. Capocelli’s
opinion would be weighted heavily because he is a treating physician and a specialist. 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
The ALJ found the Plaintiff had the capability to perform sedentary work even though he
gave little weight to any of the consultive opinions and found the Plaintiff’s testimony to not be
credible. He also found that the Plaintiff could only “occasionally climb, balance, stop, kneel,
crouch, and crawl” (T. 13) but there is no medical evidence in the record indicating these
restrictions. The duty to develop the record may include seeking clarification from treating
physicians if a crucial issue is undeveloped or underdeveloped. Smith v. Barnhart 435 F.3d 926,
930 (C.A.8 (Ark.),2006).
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). The court believes that remand is required in this
case to allow the ALJ to seek an opinion from Dr. Capocelli concerning the Plaintiff’s ability to
perform work related activity.
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 January 13, 2014.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE
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