Bandru-Gilbreath v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable James R. Marschewski on August 7, 2014. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 13-2134
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Gina Bandru-Gilbreath, 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 her claim for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”) 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).
Plaintiff filed for DIB and SSI on March 10, 2011, alleging an onset date of February 25,
2011, due to osteoporosis. Tr. 20, 118-128, 161-162, 171, 181-182. The Commissioner denied
Plaintiff’s applications initially and on reconsideration. Tr. 60-69. An administrative hearing
was held on January 3, 2012. Tr. 34-59. Plaintiff was present and represented by counsel.
At the time of the hearing, Plaintiff was 46 years old and possessed a high school
education. Tr. 39-40. She had past relevant work (“PRW”) experience as a customer service
representative, appointment clerk, and routing clerk. Tr. 39, 54.
On February 17, 2012, the Administrative Law Judge (“ALJ”) concluded that, although
severe, Plaintiff’s chronic lower back pain, osteopenia of the left hip, and migraine headaches
did not meet or equal any Appendix 1 listing. Tr. 21-24. The ALJ determined that Plaintiff
maintained the residual functional capacity (“RFC”) to perform a full range of light work. Tr.
25. He then concluded Plaintiff could return to her PRW as a customer service representative,
appointment clerk, and routing clerk. Tr. 29.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on March 21, 2013. Tr. 1-6. Subsequently, Plaintiff filed this action. ECF No. 1. Both
parties have filed appeal briefs, and the case is now ready for decision. ECF Nos. 11, 12.
This court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner's decision. The ALJ's decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d
964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other
words, 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. 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 her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her 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 or her disability, not simply their impairment, has
lasted for at least twelve consecutive months.
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).
Under the regulations, “if a claimant files additional medical evidence with a request for
review prior to the date of the [Commissioner's] final decision, the Appeals Council MUST
consider the additional evidence if the additional evidence is (a) new, (b) material, and (c) relates
to the period on or before the date of the ALJ's decision.” Williams v. Sullivan, 905 F.2d 214,
215-216 (8th Cir. 1990). Once it is clear that the Appeals Council has considered newly
submitted evidence, we do not evaluate the Appeals Council's decision to deny review. Instead,
our role is limited to deciding whether the administrative law judge's determination is supported
by substantial evidence on the record as a whole, including the new evidence submitted after the
determination was made. See, e.g., Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992);
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). Of necessity, that means that we must
speculate to some extent on how the administrative law judge would have weighed the newly
submitted reports if they had been available for the original hearing. We consider this to be a
peculiar task for a reviewing court. See Riley v. Shalala, 18 F.3d 619, 622 (8th cir. 1994).
In the present case, the Plaintiff submitted the RFC assessment of her treating doctor, Dr.
Edward Panousieris to the Appeals Council. Tr. 294-298. Dr. Panousieris indicated that the
Plaintiff had been under his care since 1990. He diagnosed her with a lumbosacral compression
fracture, elevated lipids, osteoporosis, hearing loss, and general anxiety disorder. And, Dr.
Panousieris indicated that Plaintiff had only a fair prognosis. He opined that her chronic lower
back pain was aggravated by prolonged standing, sitting, or lifting. Dr. Panousieris was of the
opinion that she could rarely lift 10 pounds; occasionally lift less than 10 pounds; occasionally
twist, stoop, crouch, squat, climb ladders, and climb stairs; sit for about two hours in an eight
hour day; stand or walk for about two hours in an eight hour day; would need a position that
allowed her to shift positions at will from sitting, standing, and walking; and, would need to take
one to two unscheduled breaks throughout the work day lasting 10 to 15 minutes each. He found
her capable of only a low stress job due to a history of general anxiety disorder, and indicated
that she would be likely to miss more than four days a month from work due to her impairments
or her treatment. And, he indicated that these limitations related back to at least 2007.
When considered in combination with the medical evidence of record, we believe that
this evidence would have influenced the ALJ’s determination in this case. Accordingly, remand
is required to allow the ALJ to consider this evidence. Id.
Because Dr. Panousieris indicated that he had been treating Plaintiff since 1990 and the
record only contains records from his office dating back to 2010, on remand, the ALJ is also
directed to obtain all records documenting Dr. Panousieris’s treatment of Plaintiff. See Snead
v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (It is the ALJ’s responsibility “to develop the
record fairly and fully, independent of the claimant’s burden to press his case.”).
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 7th day of August 2014.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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