Chavez v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on November 18, 2014. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
ANGELA M. CHAVEZ
Civil No. 13-2225
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Angela Chavez, 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”) 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).
Plaintiff filed for DIB on June 7, 2011, alleging an onset date of May 31, 2011, due to
hypertension, frequent urination,lower back pain, and leg numbness. Tr. 99-102, 124-125, 134135, 151-152, 161, 163, 168, 170. The Commissioner denied Plaintiff’s applications initially
and on reconsideration. Tr. 48-50, 55-56. An administrative hearing was held on May 17, 2012.
Tr. 23-45. Plaintiff was present and represented by counsel.
At the time of the hearing, Plaintiff was 38 years old and possessed an eighth grade
education and vocational training as a certified nursing assistant (“CNA”). Tr. 28. She had past
relevant work (“PRW”) experience as a certified nursing assistant, hatchery worker, sanitation
worker, sauce maker, and poultry dresser/deboner. Tr. 17-18, 30-32, 116-123.
On July 27, 2012, the ALJ found that Plaintiff’s hypertension, obesity, degenerative disk
disease (“DDD”), dysthymia, and panic disorder with agoraphobia were severe, but concluded
they did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P,
Regulation No. 4. Tr. 11-14. After partially discrediting Plaintiff’s subjective complaints, the
ALJ determined that she retained the residual functional capacity (“RFC”) to perform light work
except she needs a sit/stand option. In addition, she needs a job which involves
simple tasks and simple instructions and only incidental contact with the public.
Tr. 14. With the assistance of a vocational expert, the ALJ the concluded that Plaintiff could
return to her PRW as poultry dresser/deboner. Tr. 17-18.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on September 13, 2013. Tr. 1-3. Subsequently, Plaintiff filed this action. ECF No. 1.
Both parties have filed appeal briefs, and the case is now ready for decision. ECF Nos. 13, 14.
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).
Of particular concern to the undersigned is the ALJ’s RFC determination. 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). Adequate
medical evidence must therefore exist that addresses the claimant’s ability to function in the
workplace. See Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003). The Court has held,
however, that the ALJ is not at liberty to make medical judgments regarding the ability or
disability of a claimant to engage in gainful activity where such inference is not warranted by
clinical findings. McGhee v. Harris, 683 F. 2d 256 (8th Cir. 1982). And, while the issue is not
the existence of pain, the issue is whether the Plaintiff’s experience of pain precludes substantial
gainful activity. See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
The record reveals that Plaintiff . Cervicalgia with right arm radiculopathy and herniated
disk in her lumbar spine. Although Plaintiff refused a work-up on her neck due to financial
constraints, an MRI of her lumbar spine showed a left paracentral disc protrusion at the L3-4
level, a right paracentral disc protrusion with scarring in the right lateral recess, and
post-laminectomy changes at L4-5 with a small recurrent disc protrusion. Tr. 216. X-rays also
showed mild degenerative changes at the L4-5 and L5-S1 levels with a probable left L5 pars
defect. Tr. 215.
On July 4, 2011, Dr. Sharon Keith reviewed Plaintiff’s medical records and completed
an RFC assessment. Tr. 221-228. She concluded that the Plaintiff could perform light work
involving only occasional climbing ramps/stairs, balancing, stooping, kneeling, crouching, and
crawling, and never climbing ladder/rope/scaffolds. Further, Dr. Keith found Plaintiff should
avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and hazards.
Without requesting an RFC from Plaintiff’s treating doctor or referring Plaintiff for a
consultative examination, the ALJ concluded that Plaintiff could perform light work with a
sit/stand option. He made no mention of Dr. Keith’s assessment, and failed to properly consider
the financial impediments reported by Plaintiff and documented in the record. See Osborne v.
Barnhart, 316 F.3d 809, 812 (8th Cir. 2003) (recognizing that a lack of funds may justify a
failure to receive medical care); Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990) ( ALJ must
not substitute his opinions for those of the physician). Accordingly, we find that remand is
necessary to allow the ALJ to properly consider the RFC assessment of Dr. Keith and to either
obtain an RFC assessment from Plaintiff’s treating doctor or order a consultative exam to further
explore her diagnosis of cervicalgia with radiculopathy.
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 18th day of November 2014.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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