Foster v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 9, 2014. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
RAYMOND EUGENE FOSTER
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Raymond Eugene Foster, 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 his claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and 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).
Plaintiff protectively filed his current applications for DIB and SSI on August 16, 2010,
and November 23, 2010, respectively, alleging an inability to work since February 8, 2007,1 due
to a bulging disc in the lower back, bad knees, shoulder problems, a hernia, and hearing loss.
(Tr. 115, 119, 180). For DIB purposes, Plaintiff maintained insured status through December
Plaintiff, through his counsel, amended his alleged onset date to January 1, 2008. (Tr. 11, 33).
31, 2011. (Tr. 11, 125). An administrative hearing was held on October 27, 2011, at which
Plaintiff appeared with counsel and testified. (Tr. 29-56).
By written decision dated January 4, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 13).
Specifically, the ALJ found Plaintiff had the following severe impairments: depression,
osteoarthritis of the back and knees, sleep apnea, and obesity. 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. 14). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the
claimant can perform work where interpersonal contact is incidental to the work
performed; the claimant can perform work where the complexity is learned and
performed by rote, with few variables and little judgment is required, and where
the supervision required is simple, direct, and concrete; the claimant can
occasionally perform overhead work; the claimant can occasionally climb,
balance, crawl, kneel, stoop, and crouch.
(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a production and assembly worker and a machine tender. (Tr. 22).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on April 26, 2013. (Tr. 1-6). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 7). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 12,14).
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.
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 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 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 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, 416.920. Only
if the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work
experience in light of his residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520, 416.920.
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 light work with
limitations. In making this determination, the ALJ questioned Plaintiff’s need for a use of a
cane. In doing so, the ALJ pointed to a physical therapy assessment note dated August 18, 2011,
that indicated Plaintiff could walk without a cane with good stability and fair balance. (Tr. 726).
However, this assessment also indicated that Plaintiff used a cane for mobility in performing
activities of daily living. In a separate medical record dated August 18, 2011, Plaintiff was
noted to be using a cane to ambulate. (Tr. 746). A review of the medical evidence revealed that
Plaintiff was prescribed a single-point cane in October of 2010. (Tr. 493-494). Plaintiff was
noted to be using a cane when he underwent his consultative examination by Dr. Patricia J. Walz
in January of 2011. (Tr. 624). In June of 2011, Dr. Jennie Gorman noted that Plaintiff walked
with a cane, but also noted that Plaintiff walked with two crutches which the ALJ noted were not
prescribed. (Tr. 710, 18). The record also revealed that Plaintiff was prescribed knee braces and
orthodics in July of 2011. After reviewing the entire record, the Court believes remand is
necessary for the ALJ to more fully and fairly develop the record regarding Plaintiff’s alleged
bilateral knee impairment.
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 should
also ask the above physicians to indicate whether Plaintiff must use a cane to ambulate. The ALJ
may also order a consultative orthopedic examination, in which, the consultative examiner
should be asked to review the medical evidence of record, perform examinations and appropriate
testing needed 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.
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 9th day of June, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?