Wilcox v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on June 10, 2014. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
ROBERT WILBERT WILCOX, III
Civil No. 13-2111
CAROLYN W. COLVIN1, Commissioner
Social Security Administration
Plaintiff, Robert Wilcox, III, 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), 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).
The Plaintiff filed his application for DIB on August 20, 2010, alleging an onset date of
December 31, 2008, due to a back injury, leg problems, a leaking aortic heart valve, depression,
and high blood pressure. Tr. 118-121, 146, 174-175. His claims were denied both initially and
upon reconsideration. An administrative hearing was then held on September 27, 2012. Tr. 3572. Plaintiff was both present and represented at that hearing.
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 49 years old and possessed a high
school education. Tr. 19, 38-42. He had past relevant work (“PRW”) experience as a cook and
metal fabricator. Tr. 19, 147, 166-173.
On December 2, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, Plaintiff’s mild degenerative disk disease with lower back pain did not meet or equal any
Appendix 1 listing. Tr. 12-13. The ALJ determined that Plaintiff maintained the residual
functional capacity (“RFC”) to perform a full range of light work. Tr. 13. Utilizing the MedicalVocational Guidelines, the ALJ concluded that Plaintiff was not disabled. Tr. 19.
The Appeals Council denied Plaintiff’s request for review on March 22, 2013. Tr. 1-6.
Subsequently, Plaintiff filed this action. ECF No. 1. This case is before the undersigned by
consent of the parties. Both parties have filed appeal briefs, and the case is now ready for
decision. ECF No. 12, 13.
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs and the ALJ’s opinion, and are repeated here only to the extent
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 we find it possible “to draw two inconsistent positions from the evidence,
and one of those positions represents the Secretary’s findings, we 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 also 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.
The Evaluation Process:
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 or her 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 or her 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).
In this case, we find that the ALJ improperly used the Grids to determine that Plaintiff was
not disabled. Generally speaking, if the claimant suffers from nonexertional impairments that
limit his or her ability to perform the full range of work described in one of the specific categories
set forth in the guidelines, the ALJ is required to utilize testimony of a vocational expert. Groeper
v. Sullivan, 932 F.2d 1234, 1235 n. 1 (8th Cir. 1991). The ALJ may, however, rely on the
guidelines even though there are nonexertional impairments if he finds, and the record supports
the finding, that Plaintiff’s nonexertional impairments do not significantly diminish the plaintiff’s
RFC to perform a full range of activities listed in the guidelines. See Baker v. Barnhart, 457 F.3d
882, 894-95 (8th Cir. 2006) (Guidelines are properly used where ALJ explicitly discredits
claimant’s subjective complaints of pain for legally sufficient reasons) See Reed v. Sullivan, 988
F.2d 812, 816 (8th Cir.1993).
In the present case, the record reveals that Plaintiff suffered from chronic low back pain
with bilateral lower extremity radiculitis, high grade annular tears at L2-L3, L3-L4, L4-L5 and
L5-S1 levels, and broad-based disc protrusion at L4-L5 in the right foraminal position with
abutment of the right L4 nerve root. Tr. 305. Plaintiff sought out consistent treatment for his
chronic pain and was very compliant with the treatment prescribed by his doctors. He underwent
physical therapy, epidural steroid injections, and a rhizotomy to no avail. And, at least two
surgeons opined that Plaintiff was not a candidate for surgery, instead referring him to pain
management where he was prescribed a variety of narcotic pain medications and muscle relaxers.
While there were times when the medications did appear to be effective in treating his pain, his
doctors explained that they frequently switched the pain medications around in an effort to
counter bothersome side effects and prevent the possibility of both drug dependence and
tolerance. This resulted in periods of exacerbated symptomology followed by periods of relief.
Accordingly, we believe remand is necessary to allow the ALJ to reconsider Plaintiff’s pain and
the effects it might have on his non-exertional abilities such as his ability to stoop, crouch, bend,
crawl, balance, and reach.
The ALJ seemed to hang his hat on the fact there were no limitations noted in Plaintiff’s
treatment records. However, we note that his doctors had opined that he could not return to work
and should seek out long-term disability. 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 treatment.”). And,
at the time of his treatment, Plaintiff was not working. Therefore, we do not find the doctors’
failure to place work restrictions on him to be of any consequence in this case. Clearly, no
limitations are necessary when an individual is not working.
We also note that the record does not contain any RFC assessments from treating sources.
Instead, the ALJ relied solely on the assessments of non-examining doctors who merely made
assessments after reviewing Plaintiff’s medical records. See Wildman v. Astrue, 596 F.3d 959,
967 (8th Cir. 2010) (Opinions of non-examining physicians deserve little weight in the overall
evaluation of disability). Given the objective evidence in the record, we believe that Plaintiff’s
treating doctors should have been asked to complete RFC assessments. Accordingly, remand is
also necessary to allow the ALJ to obtain treating source assessments.
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 10th day of June 2014.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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