Ball v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on May 23, 2014. (lw)

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

JIMMY BALL

PLAINTIFF
v.

Civil No. 13-2100

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Jimmy Ball, 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
disability insurance benefits (“DIB”) under Title II of the Social Security Act (hereinafter “the 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
Plaintiff applied for DIB on November 9, 2009. (Tr. 202.) Plaintiff alleged an onset date of

November 29, 2006 due to back injury, pain, anxiety, high blood pressure, skin condition that causes
blistering, and neuropathy. (Tr. 245.) Plaintiff’s date last insured is December 31, 2011. (Tr. 11.)
Plaintiff’s applications were denied initially and on reconsideration. Plaintiff requested an administrative
hearing, which was held on October 9, 2010 before Administrative Law Judge (“ALJ”) Larry D. Sheperd.
(Tr. 31.) Plaintiff was present to testify and was represented by counsel. The ALJ also heard testimony
from Vocational Expert (“VE”) Charles Dwight Turner. The ALJ issued an unfavorable decision on
January 27, 2011. (87-106.) The Appeals Council remanded the decision on September 24, 2011 because
the last twenty minutes of the hearing audio recording, which contained the majority of the VE testimony,

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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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was inaudible, rendering the record incomplete. Without a complete record, the AC was unable to
determine if the decision was supported by substantial evidence. (Tr. 108.)
A second hearing was held on January 11, 2012 before ALJ Bill Jones. (Tr. 64-84.) Plaintiff was
present to testify and was represented by counsel. The ALJ also heard testimony from Vocational Expert
(“VE”) Sarah Moore. (Tr. 65.)
At the time of the second administrative hearing, Plaintiff was 50 years old, and possessed a high
school diploma. He had also completed a heavy equipment course at PetitJean Vo-Tech and HazMat
courses for a Missouri fire department. (Tr. 39-40.) The Plaintiff had past relevant work experience
(“PRW”) of heavy equipment operator, apartment maintenance worker, and industrial maintenance
worker. (Tr. 22.)
On March 1, 2102, the ALJ concluded that Plaintiff suffered from the following severe
impairments: “back disorder, status post myocardial infarction with angioplasty and stenting, peripheral
neuropathy, attention deficit disorder, and pain disorder associated with both psychological factors and
general medical condition.” (Tr. 11.) The ALJ found that Plaintiff maintained the residual functional
capacity to perform sedentary work “ except the claimant can only occasionally balance, stoop, kneel,
crouch, crawl, and climb ramps or stairs; cannot climb ladders, ropes or scaffolds; and can frequently
reach, handle, and finger bilaterally. Further, the claimant is limited to work involving simple, routine, and
repetitive tasks, involving only simple, work-related decisions, with few, if any, workplace changes.” (Tr.
15.) With the assistance of the VE, the ALJ determined that the Plaintiff could perform such representative
occupations as machine tender, assembler, and escort vehicle driver. (Tr. 23.)
Plaintiff requested a review by the Appeals Council on March 8, 2012. (Tr. 4.) The Appeals
Council declined review on March 26, 2013. (Tr. 1)
II.

Applicable Law

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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: (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

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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 three issues on appeal: 1) the ALJ erred at Step 2 by not finding Plaintiff’s sacral

fracture to be a severe impairment; 2) the ALJ erred in his credibility analysis; and 3) the ALJ erred in
rejecting the opinion of treating physician Dr. Duddling. (Pl.’s Br. 12-18.) Because this Court finds that
the ALJ failed to discuss or discredit the evidence concerning Plaintiff’s sacral fracture at Step Two, the
other issues will not be discussed.
An ALJ has no duty “ to investigate a claim not presented at the time of the application for benefits
and not offered at the hearing as a basis for disability.’ ” Gregg v. Barnhart, 354 F.3d 710, 713 (8th
Cir.2003) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir.1996)).However, once a claim has been
presented, the ALJ must consider the whole record. The ALJ is “not free to ignore medical evidence.”
Reeder v. Apfel, 214 F.3d 984, 988 (8th Cir. 2000) (ALJ’s opinion did not discuss or discredit all
diagnoses or limitations listed in medical records.)
In this case, the Plaintiff alleged “back injury” in his application. (Tr. 245.) Plaintiff saw Dr.
Samms of Cooper Clinic on December 3, 2006, after he fell from a ladder on November 29, 2006. Dr.
Samms scheduled an MRI of the lumbar and sacral areas due to “lumbar and sacral pain secondary to
trauma with sacral paresthesia.” (Tr. 381.) The MRI was taken on December 5, 2006. The impression for
this MRI was as follows:
1. Moderately severe recent compression fracture of T12 with about 60% anterior loss of
height. There is retropulsion from the posterior-superior corner producing significant
canal stenosis at the T12 level and probably compression of the conus medullaris.
2. Small central disc herniation at L4-S.
3. Minimally angulated fracture at the 3rd sacral segment also noted. There is likely also some involvement
of the left side of the 2nd sacral segment.

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(Tr. 386.) On December 6, 2006, Cooper Clinic Neurosurgeon Dr. Queeney noted “Thoracic compression
fracture” and “Sacral fracture” in his impression. (Tr. 366.) On August 29, 2009, Plaintiff reported to Dr.
Duddly that he “has more pain on his sacrum areas than he does from his fracture at T12.” (Tr. 528.)
At the hearing in 2012, Plaintiff testified that he “I can’t sit very long, I can’t stand very long. I
have to lay down all the time. “ (Tr. 80.)
The ALJ did not mention the sacral fracture in Step Two or anywhere else in the opinion. He
neither discussed nor discredited the sacral fracture, despite the fact that he spent considerable time
discussing the T12 fracture. (Tr. 15-16.) Further, the Physical RFC also neglects to identify the sacral
fracture. (Tr. 497.) Thus, a remand is necessary.
On remand, the ALJ is directed to order a consultative examination with an orthopedic specialist
to fully evaluate Plaintiff’s spinal fractures and other musculoskeletal complaints. This examination must
include the completion of a Physical RFC by that examining specialist. The ALJ must then use this
information to construct hypotheticals to address to the VE, in person or by interrogatory.
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 23rd day of May 2014.

J. Marschewski

/s/

HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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