Shields v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION Signed by Honorable James R. Marschewski on December 9, 2014. (sh)

THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JAMES PRESTON SHIELDS

PLAINTIFF

v.

Civil No. 13-2260

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, James Preston Shields, 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 his
claim for disability insurance benefits (“DIB”) and supplemental security income 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).
I.

Procedural Background
Plaintiff applied for DIB and SSI on January 11, 2011. (Tr. 8.) Plaintiff alleged an onset date of

January 1, 2002 due to a broken neck, depression, he hears voices, he is suicidal, and an inability to handle
stress and anxiety. (Tr. 232.) Plaintiff’s applications were denied initially and on reconsideration. Plaintiff
requested an administrative hearing, which was held on September 7, 2012 in front of Administrative Law
Judge (“ALJ”) Edward M. Starr. Plaintiff was present to testify and was represented by counsel. (Tr. 30.).
A second hearing was held on December 3, 2012 in front of ALJ Starr in order to obtain additional
vocational evidence. Plaintiff was present to testify and was represented by counsel. The ALJ also heard
testimony from Vocational Expert (“VE”) Larry Seifert. (Tr. 21.)

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Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner
Michael J. Astrue as the defendant in this suit.

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At the time of the first administrative hearing, Plaintiff was 49 years old, and possessed an eighth grade
education, special education track. (Tr. 38, 43.)The Plaintiff had no past relevant work experience
(“PRW”). (Tr. 14.)
On January 24, 2013, the ALJ concluded that Plaintiff suffered from the following severe
impairments: neck pain, mood disorder, and substance addiction disorder. (Tr. 10.) The ALJ found that
Plaintiff maintained the residual functional capacity to:
occasionally lift/carry 50 pounds and frequently 25 pounds. He can sit for 6 ours and
stand/walk for 6 hours in an 8-hour workday. He can occasionally work overhead
bilaterally. He can understand, remember, and carry out simple routine tasks. He can
respond to supervision that is simple, direct, and concrete. He can occasionally interact
with supervisors, co-workers and the public.
(Tr. 11-12.) With the assistance of the VE, the ALJ determined that the Plaintiff could perform such
representative occupations as kitchen helper, machine packer, and warehouse worker. (Tr. 15.)
Plaintiff requested a review by the Appeals Council on January 31, 2013. (Tr. 4.)The Appeals
Council denied the appeal on November 22, 2013. (Tr. 1.) Plaintiff filed this appeal on December 17,
2013. (ECF. No. 1.) Both parties have filed appeal briefs, and the case is now ready for decision. (ECF
Nos. 12, 13.)
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. 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.

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Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent
positions from the evidence, and one of those positions represents the Secretary’s findings, the court 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 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. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
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 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(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).
III.

Discussion
Plaintiff raises four issues on appeal: 1) the ALJ erred in his assessment of severe impairments

at Step Two; 2) the ALJ erred in not finding that Plaintiff’s impairments met Listings; 3) the ALJ’s RFC
determination is inconsistent with the record; 4) Plaintiff cannot perform the jobs identified at Step Five.

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Because this Court agrees that the RFC is inconsistent with the record, the other issues will not be
addressed.
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.” Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009); see also
Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) (ALJ is responsible for determining RFC based on all
relevant evidence, including medical records, observations of treating physicians and others, and
claimant’s own description of his limitations).
Although the ALJ is responsible for determining claimant’s Overall RFC, 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, a claimant’s RFC assessment “must be based on medical evidence that
addresses the claimant's ability to function in the workplace.”“An administrative law judge may not draw
upon his own inferences from medical reports.”Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000).
Instead, the ALJ should seek opinions from a claimant’s treating physicians or from consultative examiners
regarding the claimant’s mental and physical RFC. Id.; Strongson v. Barnhart, 361 F. 3d 1066, 1070 (8th
Cir. 2004.) Limitations resulting from symptoms such as pain are also factored into the assessment. 20
C.F.R. § 404.1545(a)(3). Further, VE “[t]estimony based on hypothetical questions that do not encompass
all relevant impairments cannot constitute substantial evidence to support the ALJ's decision.” Rappoport
v. Sullivan, 942 F.2d 1320, 1323 (8th Cir.1991) (citing Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir.
1994)).
In this case, the Court is troubled by a material inconsistency between the medical records and
the Physical RFC Assessment completed by Dr. Lucy Sauer on May 9, 2011. (Tr. 757.) Plaintiff underwent

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a cervical x-ray on March 28, 2011 as part of a physical CE examination. Dr. Richard N. Brown’s
impression was as follows: “There is some fairly severe degenerative change of the cervical spine with
reversal of the lordotic curvature. Scoliosis in the upper thoracic spine noted. Elongated C2 vertebra,
probably a variant.” (Tr. 725.) Unfortunately, the only Physical RFC in the record does not include either
degenerative changes or scoliosis in the diagnoses considered, instead listing only chronic neck pain. (Tr.
750.) Nor does the Physical RFC include any postural limitations of the type normally seen with either
degenerative disc disease or chronic neck pain. (Tr. 752.) The lack of postural limitation is also
inconsistent with the CE exam clinical findings that Plaintiff exhibited flexion, extension, and rotation
issues in the cervical spine due to pain. (Tr. 728.) Thus, the Physical RFC relied upon by the ALJ does not
appear to accurately reflect Plaintiff’s medical evidence. See Draper v. Barnhart, 425 F.3d 1127, 1130
(8th Cir. 2005) (“inaccuracies, incomplete analyses, and unresolved conflicts of evidence can serve as a
basis for remand”). On remand, the ALJ is directed to order a new Physical RFC, preferably by a treating
or examining physician.
In regard to Plaintiff’s Mental RFC, there are two assessments in the record. The first was
completed by non-examining Agency Physician Dr. Sheri Simon on December 30, 2011. (Tr. 802.) This
RFC indicates at most moderate limitations in several categories, and no significant limitations in the rest
based on a diagnosis of Mood Disorder NOS. (Tr. 800-802.) The second is the medical source statement
completed by CE Dr. Spray on September 12, 2012. He assessed moderate, marked and extreme
limitations in Plaintiff’s ability to understand, remember, and carry out instructions due to Plaintiff’s
limited cognitive function (mild mental retardation), poor short-term memory, poor long-term memory,
and one factor which is illegible on the report. (Tr. 837.) He assessed marked limitation in Plaintiff’s ability
to interact appropriately with others due to distrust of others, atypical thinking, and paranoid ideation. (Tr.
838.) He also assessed marked limitations for persistence and ability to complete tasks in a timely manner.
(Tr. 838.) The ALJ gave “great weight” to the nonexamining Mental RFC. He gave Dr. Spray’s medical

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source statement “little weight” because it was “not supported by the evidence of record or his own report
with regard to the claimant’s mental capabilities and limitations.” (Tr. 14.)
Unfortunately, this Court was not able to discern the inconsistency between Dr. Spray’s CE report
and his RFC assessment. In his CE, Dr. Spray diagnosed Plaintiff with Possible Schizophrenia (paranoid
type), Alcohol Abuse, and Mild Mental Retardation. He assigned a GAF score of 40-50. (Tr. 765.) In
discussing his adaptive functioning, he noted that Plaintiff has never had a driver’s license, does not shop,
and family members always manage his money. He noted that the Plaintiff has no history of independent
living. (Tr. 766.) He doesn’t cook because his family doesn’t trust him behind the stove. He can’t do
laundry because he “put the wrong stuff in’em.” He helps out by sweeping. He has no hobbies. He notes
that Plaintiff “ has difficulty trusting anyone.” (Tr. 765.) He noted that “[h]is responses show limited fund
of general information, extremely poor short term memory, limitations in delayed recall, poor attention and
concentration, poor math and abstract verbal reasoning skills. (Tr. 765-66.) He noted that attention and
concentration are poor, and persistence is extremely poor. He noted that his pace is slow and Plaintiff
would have difficulty completing tasks in a timely manner. He noted that Plaintiff reported that he couldn’t
keep a job for longer than a month, as he is forgetful, has difficulty keeping up, and has complaints from
management. (Tr. 766.)
Thus, a remand is necessary in order to afford the ALJ the opportunity to further explain the
inconsistency he relied upon, at least in part, to dismiss Dr. Spray’s medical source statement. See Draper,
425 F.3d at 1130 (“inaccuracies, incomplete analyses, and unresolved conflicts of evidence can serve as
a basis for remand”). A remand will also provide an opportunity for the ALJ to discuss the GAF scores
of 40-50 assigned by Dr. Spray and the GAF score of 40-45 assigned by CE Patricia Walz in her
abbreviated consultative examination. Her examination was terminated because Plaintiff didn’t want to
be there and was “so irritable and volatile” that she was “afraid he would lose his temper.” (Tr. 733.) Her

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diagnosis was Probable Schizophrenia, (Paranoid Type), Alcohol Abuse, and Mild Mental Retardation v.
Borderline Intellectual Functioning. (Tr. 733.)
IV.

Conclusion
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 9th day of December 2014.

J. Marschewski

/s/

HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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