Daves v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 29, 2014. (rw)

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

BRENDA D. DAVES

PLAINTIFF

v.

NO. 13-2155

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Brenda D. Daves, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claims for supplemental security income (SSI) benefits under the
provisions of Title XVI of the Social Security Act (Act). 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 protectively filed her current application for SSI on June 27, 2011, alleging an

inability to work due to abdominal pain from radiation due to treatment for Hodgkin’s disease.
(Tr. 196, 220). An administrative hearing was held on April 24, 2012, at which Plaintiff
appeared with counsel and testified. (Tr. 21-44).
By written decision dated July 6, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 12).

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Specifically, the ALJ found Plaintiff had the following severe impairments: abdominal pain from
radiation treatment for Hodgkin’s disease, and diabetes. However, after reviewing all of the
evidence presented, the ALJ determined that Plaintiff’s impairments did not meet or equal the
level of severity of any impairment listed in the Listing of Impairments found in Appendix I,
Subpart P, Regulation No. 4. (Tr. 12). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to perform the full range of light work as defined in 20 C.F.R. § 416.967(b). (Tr.
12). With the help of a vocational expert, the ALJ determined Plaintiff could perform her past
relevant work as a hotel clerk and a snack bar attendant. (Tr. 15).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on April 30, 2013. (Tr. 1-4). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 11). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 13, 14).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
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. 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
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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 her disability, not simply her impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require her 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 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 her age, education, and experience. See 20 C.F.R. § 416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
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in light of her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42
(8th Cir. 1982); 20 C.F.R. § 416.920.
III.

Discussion:
Of particular concern to the undersigned is the ALJ’s RFC determination. RFC is the

most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). A disability
claimant has the burden of establishing his or her RFC. See Masterson v. Barnhart, 363 F.3d 731,
737 (8th Cir.2004). “The ALJ determines a claimant’s RFC based on all relevant evidence in
the record, including medical records, observations of treating physicians and others, and the
claimant’s own descriptions of his or her limitations.” Eichelberger v. Barnhart, 390 F.3d 584,
591 (8th Cir. 2004); Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). Limitations
resulting from symptoms such as pain are also factored into the assessment. 20 C.F.R. §
404.1545(a)(3). The United States Court of Appeals for the Eighth Circuit has held that a
“claimant’s residual functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700,
704 (8th Cir. 2001). Therefore, an ALJ’s determination concerning a claimant’s RFC must be
supported by medical evidence that addresses the claimant’s ability to function in the
workplace.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003).
In the present case, the ALJ determined that Plaintiff was able to perform a full range of
light. A review of the record revealed that Plaintiff underwent treatment for Hodgkin’s Disease
in 1979, and then again in the late 1990's. In August of 2011, Plaintiff underwent a general
physical examination performed by Dr. Clifford Lamar Evans. (Tr. 402-407). After examining
Plaintiff, Dr. Evans diagnosed Plaintiff with an intestinal injury secondary to radiation treatment
for Hodgkin’s Disease, and biliary sclerosis secondary to external radiation therapy. Dr. Evans
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opined Plaintiff would have mild to moderate limitation to the body as a whole. Plaintiff began
treatment at the Good Samaritan Clinic in September of 2011, and reported experiencing
periodic, intense abdominal pain about twice per month. (Tr. 431). On October 12, 2011, based
upon Plaintiff’s medical history and her symptoms at that time, it was recommended that
Plaintiff undergo a CT Scan of the abdomen. (Tr. 430). There is no record that Plaintiff
underwent a CT Scan of her abdomen, and the record is void of an RFC assessment dated after
October of 2011, addressing Plaintiff’s recurrent abdominal pain. The Court believes remand
is necessary for the ALJ to more fully and fairly develop the record regarding Plaintiff’s alleged
abdominal pain.
On remand, the ALJ is directed to address interrogatories to the physicians who have
evaluated and/or treated Plaintiff asking the physicians to review Plaintiff's medical records; to
complete a RFC assessment regarding Plaintiff's capabilities during the time period in question;
and to give the objective basis for their opinions so that an informed decision can be made
regarding Plaintiff's ability to perform basic work activities on a sustained basis. The ALJ may
also order a consultative examination from a gastroenterologist, in which, the consultative
examiner should be asked to review the medical evidence of record, perform examinations and
appropriate testing needed, including a CT Scan of Plaintiff’s abdomen, to properly diagnosis
Plaintiff's condition(s), and complete a medical assessment of Plaintiff's abilities to perform work
related activities. See 20 C.F.R. § 416.917.
With this evidence, the ALJ should then re-evaluate Plaintiff's RFC and specifically list
in a hypothetical to a vocational expert any limitations that are indicated in the RFC assessments
and supported by the evidence.
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IV.

Conclusion:
Accordingly, the Court concludes that the ALJ’s decision is not supported by substantial

evidence, and therefore, the denial of benefits to the Plaintiff should be reversed and this matter
should be remanded to the Commissioner for further consideration pursuant to sentence four of
42 U.S.C. § 405(g).
DATED this 29th day of May, 2014.

/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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