Phomsopha v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on August 11, 2014. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 13-2205
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Shell Phomsopha, formerly Heather Poole, 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 a period of disability and 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 her application for DIB on February 22, 2010, alleging an onset date
of September 1, 2001, due to a colon condition, pain, high blood pressure (HBP), depression, and
lumbar back pain. Tr. 69. Plaintiff’s claim was denied initially and upon reconsideration. Tr.
13. An administrative hearing was then held on December 20, 2012. Tr. 433-455. Plaintiff was
present and represented by counsel. At the time of the administrative hearing, plaintiff was 47
years of age and possessed an eleventh grade education. Tr. 436.
On February 28, 2013, the Administrative Law Judge (“ALJ”) concluded that Plaintiff
last met the insured status requirements of the Social Security Act on June 30, 2002. Tr. 15.
Through her date last insured, the ALJ found that Plaintiff had the following medically
determinable impairments: hypertension and gastrointestinal disorder (cholecystitis with remote
cholecystectomy followed by a revision surgery to repair a bile duct leak in 2001). However, the
ALJ determined that neither impairment was severe, whether considered singularly or in
combination. Tr. 15. Therefore, he was of the opinion that Plaintiff was not disabled at any time
from September 1, 2001, through June 30, 2002. Tr. 18.
The Appeals Council denied Plaintiff’s request for review on August 10, 2013. Tr. 3-5.
She subsequently 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. 11, 18.
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).
Of particular concern to the undersigned is the ALJ’s determination that Plaintiff did not
suffer from a severe impairment prior to her date last insured. A “severe impairment is defined
as one which ‘significantly limits [the claimant’s] physical or mental ability to do basic work
activities.’” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006) (quoting 20 C.F.R. §
404.1520©). The impairment must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic
techniques. A physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement
of symptoms. 20 C.F.R. § 404.1508.
The record reveals that Plaintiff was hospitalized July 11-17, 2001, at 37 weeks gestation,
with severe flank pain and right upper quadrant pain and findings consistent with acute
cholecystitis. Plaintiff had gallstones, but antibiotics were not sufficient to resolve her acute
cholecystitis. On July 14, 2001, an urgent cesarean section became necessary. Tr. 173-174.
On August 28, 2001, Plaintiff was again admitted for acute cholecystitis. She reported
a history of abdominal pain and anorexia. Ultrasound showed dilated thickened wall gallbladder
with cholelithiasis with stones impacted in the neck of the gallbladder. Tr. 175. On August 29,
she underwent laparoscopy, but due to an acute inflammatory mass involving the gallbladder,
omentum, duodenum, transverse colon, and stomach, Plaintiff’s procedure was conferred to an
open cholecysteomy with intraoperative cholangiography. She was noted to have a thickened
wall and enlarged gall bladder with marked hemorrhagic inflammation. Unfortunately, she
experienced post operative complications involving a bile leak. She experienced prolonged and
increased Jackson-Pratt drainage, and an endoscopic retrograde cholangiopancreatogramph was
conducted on September 4 to localize the leak. The results revealed a blunt obstruction of the
distal ductal system for which surgical repair was necessary. Tr. 176. Plaintiff was released on
Plaintiff was hospitalized from September 5-13, 2001, at the University of Oklahoma
Medical Center for a hepatiocojejunostomy with Roux-Y anastomosis, biliary stent change, and
choledochocopy. Tr. 233, 236. On September 13, 2001, she was released in stable condition
with a T tube in place and was instructed as to maintenance of the T tube. Further, Plaintiff was
restricted from heavy lifting greater than 10 pounds for at least one month. Tr. 237. Home
health care was set up for maintenance of the T Tube, and she was scheduled to follow up in the
general surgery clinic and in radiology in one month to have the T tube changed. Tr. 237.
On September 19, 2001, Plaintiff was seen at St. Edwards ER with febrile illness of
indeterminate etiology, probably genitourinary source. She was instructed to return to the ER
the following day for reassessment. Tr. 178-179.
On October 10, 2001, Plaintiff returned to the OU Medical Center for a stent change. Tr.
230-232, 268-269. The goal was to upsize with each stent replacement to create a large lumen
between the biliary system and the bowel limb. This occurred every six weeks through June
2002. Tr. 224, 225, 226, 227, 228, 253, 255-256, 265, 266, 267. Records reveal that this
procedure was “uncomfortable” for the Plaintiff, requiring her to take pain pills “every day and
night.” Tr. 228. Treatment notes also reveal continued epigastric pain and nausea through at
least July 2002, for which Demerol and Phenergan were prescribed. Tr. 224, 225, 253, 255-256.
After reviewing this evidence, it is clear to the undersigned that Plaintiff suffered from
complications related to her cholecysteomy that were severe in nature. Accordingly, we find that
remand is necessary to allow the ALJ to proceed with steps 3 through 5 of the analysis.
Based on the foregoing, we recommend reversing the decision of the ALJ and remanding
this case to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C.
DATED this 11th day of August 2014.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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