McCoy v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 28, 2014. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 2:13-cv-02068
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Natalie McCoy (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying her application for
Disability Insurance Benefits (“DIB”) under Title II of the Act. The Parties have consented to the
jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including
conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment
proceedings. ECF No. 6.1 Pursuant to this authority, the Court issues this memorandum opinion and
orders the entry of a final judgment in this matter.
Plaintiff’s disability application has been pending for nearly ten years. On September 23,
2004, Plaintiff filed her DIB application. (Tr. 16). In this application, Plaintiff alleges an onset date
of January 1, 1993. Id. Plaintiff alleges being disabled “due to scoliosis, lower back pain, arthritis,
left foot deformity, and depression.” Id.
This application was denied initially and again upon reconsideration. (Tr. 26-28). On May
The docket numbers for this case are referenced by the designation “ECF No. __.” The
transcript pages for this case are referenced by the designation “Tr.”
18, 2006, an administrative hearing was held on Plaintiff’s DIB application. (Tr. 337-394).
Thereafter, on October 25, 2006, the ALJ entered a fully unfavorable decision denying Plaintiff’s
application for DIB. (Tr. 426-449).
Plaintiff then appealed that denial to the Western District of Arkansas, Fort Smith Division.
(Tr. 460-465). See McCoy v. SSA, 2:07-cv-02100 (W.D. Ark. Sept. 17, 2007). On May 29, 2008, the
Honorable U.S. Magistrate Judge James R. Marschewski remanded Plaintiff’s action to the Social
Security Administration for further administrative review. ECF Nos. 10-11. In the Memorandum
Opinion remanding that action, Judge Marschewski stated Plaintiff’s action need to be remanded to
further develop the findings of Dr. Richard McCarthy, Plaintiff’s treating surgeon. (Tr. 463). Judge
Marschewski also noted the “relevant time period in this case is January 1, 1993, plaintiff’s alleged
onset date, through December 31, 1998, plaintiff’s date last insured. As such, only evidence
specifically related to plaintiff’s condition during this time period will be relevant to the ALJ’s
decision on remand.” (Tr. 464-465).
Thereafter, the ALJ held a second administrative hearing on December 3, 2008. (Tr. 441).
After that hearing, the ALJ again entered a fully unfavorable decision. (Tr. 441-449). This decision
was entered on August 26, 2009. Id. On July 29, 2011, the Appeals Council remanded Plaintiff’s
case back to the ALJ. (Tr. 480-482). The Appeals Council remanded Plaintiff’s case because “the
record upon which the Administrative Law Judge based the decision could not be located.” Id.
Accordingly, the ALJ held a third administrative hearing on February 7, 2012. (Tr. 854-907).
At this hearing, Plaintiff was present and was represented by counsel, Fred Caddell. Id. Plaintiff and
Vocational Expert (“VE”) Montie Lumpkin testified at this hearing. Id. During this hearing, Plaintiff
testified she was fifty (50) years old. (Tr. 860). Plaintiff also testified, however, that she was only
thirty-seven (37) years old when her insured status expired on December 31, 1998. Id. A thirty-seven
(37) year old would be classified as a “younger person” under 20 C.F.R. § 404.1563(c) (2008).
Further, Plaintiff also testified at this hearing that she completed high school and two years of college.
On June 20, 2012, the ALJ entered a third fully unfavorable decision on Plaintiff’s disability
application. (Tr. 406-414). In this decision, the ALJ found Plaintiff last met the insured status
requirements of the Act on December 31, 1998. (Tr. 408, Finding 1). The ALJ determined Plaintiff
had not engaged in Substantial Gainful Activity (“SGA”) during the time-period from her alleged
onset date of October 1, 1993 through her date last insured of December 31, 1998. (Tr. 408, Finding
2). The ALJ determined that through her date last insured, Plaintiff had the following severe
impairments: scoliosis status post fusion surgery; incisional hernia; and residuals of foot surgery. (Tr.
408, Finding 3). The ALJ, however, also determined Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments in Appendix
1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 408-410, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 410-414, Finding 5). First, the ALJ found Plaintiff’s subjective allegations were not supported
by the overall record and were not fully credible. Id. Second, in accordance with that finding, the
ALJ determined Plaintiff retained the RFC to perform the “full range of sedentary work.” Id. The
“full range of sedentary work” includes the following:
(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount
of walking and standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other sedentary
criteria are met.
20 C.F.R. § 404.1567(c) (2012).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 414, Finding 6). The ALJ
determined Plaintiff’s PRW included work as an accounting clerk. Id. Based upon her RFC, the ALJ
found Plaintiff retained the capacity to perform this PRW. Id. Because she retained the capacity to
perform her PRW, the ALJ found Plaintiff had not been under a disability, as defined by the Act, at
any time from October 1, 1993 (her alleged onset date) until December 31, 1998 (her date last
insured). (Tr. 414, Finding 6).
On February 12, 2013, the Appeals Council denied Plaintiff’s request for review of the ALJ’s
June 20, 2012 decision. (Tr. 395-397). On March 6, 2013, Plaintiff filed the current action. ECF No.
1. The Parties consented to the jurisdiction of this Court on March 8, 2013. ECF No. 6. Both Parties
have filed appeal briefs. ECF Nos. 11-12. This case is now ready for decision.
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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. See 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 his or her disability by establishing a physical or mental disability that lasted at least one year
and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160
F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a
“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 his or her impairment, has lasted for at least twelve consecutive months. See
42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses the
familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged
in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly
limits the claimant’s physical or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is disabled without regard to age, education, and work experience);
(4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past
relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
Plaintiff raises several arguments for reversal in her briefing. ECF No. 11. Importantly,
Plaintiff claims the ALJ’s disability determination is not supported by substantial evidence because
the “ALJ erred by failing to comply with the Federal Court Remand.” Id. at 11. Having carefully
reviewed the record in this action, this Court finds this argument is merited, and the ALJ did not
properly consider the findings of Plaintiff’s treating physician, Dr. McCarthy, in assessing Plaintiff’s
As noted above, on May 29, 2008, Judge Marschewski remanded Plaintiff’s case to further
develop the record as to the findings of Plaintiff’s treating physician, Dr. McCarthy. (Tr. 463-465).
The time-period at issue in this case is Plaintiff’s alleged onset date of October 1, 1993 through her
date last insured of December 31, 1998. Id. The ALJ was directed to assess Dr. McCarthy’s findings
during that time-period to determine whether Plaintiff was disabled. Id.
After this remand, to further develop Dr. McCarthy’s findings, on August 1, 2008, Dr.
McCarthy completed an Attending Physician’s Statement. (Tr. 619). In this report, Dr. McCarthy
commented on Plaintiff’s abilities on or before December 31, 1998. Id. In this statement, Dr.
McCarthy reported he first began treating Plaintiff in 1993. Id.
He diagnosed her with severe
scoliosis and degenerative disc disease. Id. He reported that from 1993 until 1998 she would need
to take unscheduled breaks during an 8-hour work shift, would likely be absent from work more than
four days per month, and would be incapable of working eight hours per day or forty hours per week.
In the June 20, 2012 decision, the ALJ considered this August 1, 2008 report. After
considering this report, the ALJ discounted Dr. McCarthy’s findings. (Tr. 413). The ALJ decided
to discount the findings from this August 1, 2008 report because the ALJ believed they were not
consistent with Dr. McCarthy’s previous findings related to Plaintiff’s disability. Id. Notably, in June
of 2006, Dr. McCarthy stated there was “insufficient information in her chart to determine her level
of disability on or prior to 1998.” (Tr. 552) (emphasis added). The ALJ found this statement was
inconsistent with his August 1, 2008 finding of disability. (Tr. 413).
Upon review, Dr. McCarthy did state in June of 2006 that there was “insufficient information
in her chart to determine her level of disability on or prior to 1998.” (Tr. 552). However, in making
this statement, it appears Dr. McCarthy merely did not wish to address the ultimate question of
disability. Id. Certainly, he was correct in this determination because the SSA has the responsibility
for determining whether a claimant suffers from a disability. See 20 C.F.R. § 404.1527(e)(1) (“We
[the SSA] are responsible for making the determination or decision about whether you meet the
statutory definition of disability. . . . A statement by a medical source that you are ‘disabled’ or
‘unable to work’ does not mean that we will determine that you are disabled”).
Indeed, it does not appear Dr. McCarthy had no knowledge of Plaintiff’s impairments from
1993 until 1998. During the same month in June of 2006, Dr. McCarthy wrote a lengthy narrative
wherein he outlined the history of Plaintiff’s treatment during the relevant time-period (1993 until
1998). (Tr. 550-551). He stated that in 1995, Plaintiff was required to undergo “two spinal surgeries
for correction of her deformity [scoliosis].” (Tr. 550). One was a “very extensive surgery which
carries significant risk and prolonged recovery and rehabilitation for adults who undergo this
surgery.” Id. Dr. McCarthy noted Plaintiff “required care in the Surgical Intensive Care Unit
following both procedures.” Id.
Dr. McCarthy noted that in June of 1998, Plaintiff “underwent surgery on her foot which
changed her gait pattern and significantly exacerbated the left-sided low back pain and SI joint pain.”
(Tr. 550). He noted “[t]his gait abnormality has put additional stress on her low back and SI joint
which increases her pain and occurs with any activity.” (Tr. 551). He concluded with the following
statement: “Mrs McCoy underwent major life-threatening spinal surgery to reconstruct her spine in
an attempt to restore some quality to her life. We were successful to a degree but not completely.
She will always have a certain amount of pain and disability from her significant scoliosis deformity.”
Based upon this review, Dr. McCarthy’s findings from August of 2008 were not necessarily
inconsistent with his June of 2006 findings. Accordingly, the ALJ discounted Dr. McCarthy’s
findings in his August of 2008 report without a “good reason.” See Anderson v. Astrue, 696 F.3d 790,
793 (8th Cir. 2012) (“[u]ltimately, the ALJ must ‘give good reasons’ to explain the weight given the
treating physician’s opinion”). In fact, upon review of the ALJ’s decision in this matter, the ALJ has
provided no other legitimate basis for rejecting the findings of Dr. McCarthy, the physician who
treated Plaintiff during this time-period. (Tr. 410-414). Thus, this case must be reversed.
Furthermore, as to the time period from Plaintiff’s alleged onset date of October 1, 1993
through her date last insured of December 31, 1998, this Court finds no further administrative
development is necessary. Thus, as to that time period alone, this case can be reversed and rendered
for a closed period of disability. See Andler v. Chater, 100 F.3d 1389, 1394 (8th Cir. 1996) (holding
that “[i]f the record presented to the ALJ contains substantial evidence supporting a finding of
disability, a reviewing court may reverse and remand the case to the district court for entry of an order
granting benefits to the claimant”). Such a remedy is especially appropriate where “further hearings
would merely delay benefits.” Id. However, because it appears Plaintiff returned to work on a “fulltime” basis after December 31, 1998, the Court declines to award benefits after that date. (Tr. 129,
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is not supported by substantial evidence and should be reversed and rendered for an award
of benefits for the closed period of disability from October 1, 1993 until December 31, 1998. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 28th day of July 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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