Caldwell v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on April 22, 2014. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

DAVID CALDWELL

PLAINTIFF

v.

Civil No. 13-2082

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, David Caldwell, 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/her claim
for disability insurance benefits (“DIB”) and supplemental security income 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).
I.

Procedural Background
Plaintiff applied for DIB and SSI on July 12, 2010. (Tr. 11.) Plaintiff alleged an onset date of

December 2, 2008 due to chronic back pain and hearing issues. (Tr. 182.) This onset was amended to
August 1, 2010 at the hearing. (Tr. 32.) Plaintiff’s applications were denied initially and on
reconsideration. Plaintiff requested an administrative hearing, which was held on October 5, 2011. (Tr.
28.) Plaintiff was present to testify and was represented by counsel. The ALJ also heard testimony from
Vocational Expert (“VE”) John Massey.
At the time of the administrative hearing, Plaintiff was 53 years old, and possessed a high school
education. (Tr. 183.) The Plaintiff had past relevant work experience (“PRW”) of well-driller-oil, derrick
hand, and telephone installer. (Tr. 21.)

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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.

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On May 9, 2012,

the ALJ concluded that Plaintiff suffered from the following severe

impairments: degenerative disk and joint disease of the lumbar spine and diminished hearing in the left
ear. (Tr. 13.) The ALJ found that Plaintiff maintained the residual functional capacity to perform light
work, except that he “cannot climb ladders, ropes, or scaffolds; cannot perform work requiring fine
hearing; and can only occasionally balance, stoop, kneel, crouch, crawl, or climb ramps and stairs.” (Tr.
15.) With the assistance of the VE, the ALJ determined that the Plaintiff could perform such representative
occupations as package mail sorter - conveyor belt; assembly-production, and dishwasher (performed at
the light exertional level). (Tr. 22.)
Plaintiff requested a review by the Appeals Council on May 29, 2012. (Tr. 5.) The Appeals
Council declined review on March 7, 2013. (Tr. 1.)
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

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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: (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).
III.

Discussion
Plaintiff raises two issues on appeal: 1) the ALJ erred in rejecting the opinions of Drs. Silver and

Honghiran who both found that he was limited to sedentary work, which would thus require that he be
found disabled per Vocational Guideline 201.14; and 2) the ALJ’s credibility analysis was flawed.
This Court is troubled by the fact that the ALJ has assigned every Physical RFC opinion in the
record either “little weight” or “limited weight,” and failed to give explicit reasons for discounting almost
identical sit/stand/walk RFC evaluations from two examining physicians. An ALJ is free to discount a
physician's report if the record warrants that decision. Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir.
2007). However, under the Agency’s own policy interpretations, the ALJ must “provide appropriate

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explanations for accepting or rejecting” medical source opinions about what an individual can still do in
making their Overall RFC assessment. SSR 96-5p.
In this case, there are three RFC opinions in the record. Non-examining Agency physician Dr.
Norcross completed one on September 2, 2010. (Tr. 338.) The ALJ gave this opinion “limited weight”
because it predated the MRI evidence of Plaintiff’s back issues. (Tr. 20. )A second Physical RFC was
completed by examining physician Dr. Silver on September 27, 2011. (Tr. 389-92.) The ALJ then
commendably ordered a CE with orthopedic specialist Dr. Honghiran, who examined Plaintiff and
completed a Physical RFC on November 21, 2011. (Tr. 226, 396-403.) Both of these RFC’s included the
MRI evidence in their consideration.
As the ALJ pointed out in his opinion, there were differences between Dr. Silver’s and Dr.
Honghiran’s RFCs. (Tr. 20.) However, both physicians made almost identical evaluations for the amount
of time the Plaintiff is able to sit/ stand/walk in an eight hour workday. Dr. Silver opined that he could
sit/stand/walk for two-three hours. (Tr. 390.) Dr. Honghiran opined that he could stand/walk for two hours
and sit for four hours. (Tr. 399.) In giving Dr. Silver’s RFC “little weight” and Dr. Honghiran’s RFC
“limited weight,” the ALJ did not discuss the similarity of the sit/stand/walk findings or explain why he
discounted such similar findings by two examining physicians, one of whom is a specialist.
As pointed out by Plaintiff in his brief, the sit/stand/walk issue is crucial to the overall RFC
determination in this case. If the Plaintiff is not able to sit/stand/walk for six hours in an eight-hour
workday, then he cannot do the full range of light work. See SSR 83-10 (“the full range of light work
requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.”). If
he is limited to sedentary work, then he may well fall within the requirements of Medical Vocational
Guideline 201.14. Therefore, the ALJ’s failure to explicitly discuss the sit/stand/walk findings is not a
harmless error in opinion-writing technique. See e.g. Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004) (quoting Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir.1987) (The court will not “set aside an

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administrative finding based on an ‘arguable deficiency in opinion-writing technique’ when it is unlikely
it affected the outcome ”).
Thus, despite a persuasively written credibility analysis, the ALJ’s failure to explicitly discuss the
sit/stand/walk RFC opinions requires a remand. On remand, the ALJ should specifically discuss his
reasons for failing to accept the sit/stand/walk opinions of Dr. Silver and Dr. Honghiran. If the ALJ deems
it appropriate, a consultative examination with another orthopedic specialist should be ordered.
IV.

Conclusion

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 22nd day of April 2014.

/s/J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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