Reed v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on January 27, 2015. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
REBECCA L. REED
Civil No. 14-2008
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Rebecca Reed, 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 supplemental security income (“SSI”) under Title 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).
Plaintiff filed her application for SSI on September 22, 2011, alleging disability due to
chronic obstructive pulmonary disease (“COPD”); hepatitis B; hepatitis C; bone deterioration;
disk disease of the cervical spine; bursitis; osteoporosis; fatigue; pain in the back, neck, arms,
legs, and feet; diabetes; attention deficit hyperactivity disorder (“ADHD”); depression, posttraumatic stress disorder (“PTSD”); and, personality disorder. Tr. 8, 108-113, 134, 146, 160161, 174, 180-181, 202, 205. Her applications were denied initially and on reconsideration. Tr.
53-59, 66-68. An administrative hearing was held on October 3, 2012. Tr. 31-52. Plaintiff was
present and represented by counsel.
At the time of the hearing, Plaintiff was 54 years old and possessed a high school
education. Tr. 18, 147. She had past relevant work (“PRW”) experience as a construction
worker. Tr. 18, 33-34, 137-139, 147, 152-159.
On October 26, 2012, the ALJ found Plaintiff’s COPD, mild degenerative disk disease
of the hips, bilateral shoulder pain, depressive disorder, psychological factors affecting her
medical condition, and PTSD to be severe, but concluded they did not meet or medically equal
one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. Tr. 10-12. The ALJ
concluded that the Plaintiff could perform light work involving only occasional climbing of
ramps and stairs and overhead reaching; frequent balancing, stooping, kneeling, crouching, and
crawling; no climbing of ladders, ropes, or scaffolds; and, no moderate exposure to fumes, odors,
dust, gases, poor ventilation, dangerous machinery, and unprotected heights. Tr. 12. Further,
the ALJ found the Plaintiff to be limited to simple, routine, and repetitive tasks involving only
simple work-related decisions, with few, if any, workplace changes and no more than incidental
contact with co-workers, supervisors, and the general public. With the assistance of a vocational
expert, the ALJ concluded Plaintiff could perform work as a production worker, gasket inspector,
and inspector/checker. Tr. 19.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on November 29, 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. 12, 13.
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 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 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).
When, as here, the Plaintiff submits additional medical evidence with their request for
review by the Appeals Council, the Appeals Council must consider the additional evidence if the
additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of
the ALJ’s decision. Williams v. Sullivan, 905 F.2d 214, 215-216 (8th Cir. 1990). However, the
timing of the evidence is not dispositive of whether the evidence is material. Id. Evidence
obtained after an ALJ decision is material if it is related to the claimant’s condition on or before
the date of the ALJ’s decision. Basinger v. Heckler, 725 F.29 1166, 1169 (8th Cir. 1984).
Once it is clear that the Appeals Council has considered newly submitted evidence, it is
the task of this Court to determine whether the ALJ’s determination is supported by substantial
evidence on the record as a whole, including the new evidence submitted after the determination
was made. See, e.g., Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992); Browning v. Sullivan,
958 F.2d 817, 822 (8th Cir. 1992). Of necessity, that means that we must speculate to some
extent on how the ALJ would have weighed the newly submitted reports if they had been
available for the original hearing.
The current record reveals that the Plaintiff suffered from headaches and pain in her
shoulders, arms, and neck. Examinations conducted during the relevant time period revealed
pain to palpation, pain on range of motion, and some range of motion deficits in her upper
extremities. Diagnoses ranged from bilateral arm pain to osteoarthritis for which Lorcet, Lortab,
a Medrol Dosepak, Naproxen, and Flexeril were alternately prescribed.
Three months following the entry of the ALJ’s opinion, the Plaintiff underwent an MRI
of her brain. Tr. 344. Small vessel chronic ischemic changes were noted with a few scattered
areas of signal abnormality in the deep white matter and mild signal abnormality in the bilateral
mastoids. Aside from a notation that the MRI was ordered due to the Plaintiff’s chronic
headaches, there is no evidence to explain the significance of these findings.
Nine months after the ALJ issued his opinion, an MRI of the Plaintiff’s cervical spine
showed small central disk bulges at the C4-5, C5-6, and C6-7 levels with spurring. The doctor
diagnosed her with cervical disk disease and prescribed Neurontin.
It is clear that the MRIs conducted in 2013 are new evidence, as they were both dated and
submitted after the ALJ’s opinion. However, without additional information, we can not
determine their materiality. See Cunningham v. Apfel, 222 F.3d 496, 502 (holding that medical
evidence dated after the ALJ’s decision is material if it relates to the claimant’s condition on or
before the date of the ALJ’s decision). As previously noted, the Plaintiff was treated for upper
extremity pain and headaches during the relevant time period. And, we can discern no evidence
to indicate that her condition deteriorated or that she suffered an injury that might account for
these findings following entry of the ALJ’s opinion.
Similarly, the record provides no information concerning small vessel disease, its
symptoms, it prognosis, or the possible link between this disorder and the headaches reported
by the Plaintiff during the relevant time period. Without this information, the undersigned can
not determine whether substantial evidence supports the ALJ’s decision.
We also note that the only RFC assessment contained in the record was completed by a
non-examining, consultative physician in December 2011.1 Tr. 269-276. After reviewing
Plaintiff’s medical records, the doctor concluded that she could perform light work involving
limited climbing and reaching in all directions. Without explanation, however, the ALJ limited
the Plaintiff to light work with occasional overhead reaching. See Delrosa v. Sullivan, 922 F.2d
480, 484 (8th Cir. 1991) (it is improper for ALJ to substitute own unsubstantiated conclusions
regarding existence of impairments for a physician’s express diagnosis).
Accordingly, we find that remand is necessary to allow the ALJ to develop the record
further with regard to the relationship between the MRI results, the symptoms suffered by the
Plaintiff during the relevant time period, and the Plaintiff’s RFC. On remand, the ALJ is directed
to order an orthopedic consult. The ALJ should provide the examiner with a copy of the
Plaintiff’s medical records and ask the examiner to opine as to the likely onset of the herniated
disks and small vessel disease. The examiner should also be asked to provide an assessment of
the Plaintiff’s ability to perform work-related tasks during the relevant time period.
This assessment was later affirmed by another non-examining, consultant in April 2012. Tr. 299-303.
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 27th day of January 2015.
/s/Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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