Aguilar v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on February 11, 2016. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FOR SMITH DIVISION
JEPHTE AGUILAR

.

PLAINTIFF

V.

Civil No. 3:14-cv-02197-MEF

CAROLYN W. COLVIN, Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Jephte Aguilar, brings this action under 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”) under Title
II of the Social Security Act (hereinafter “the Act”), 42 U.S.C. § 423(d)(1)(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 filed his application for DIB on October 4, 2011, alleging an amended onset date

of July 3, 2011,1 due to a brain tumor; constant headaches and migraines; hemorrhage; neck, wrist,
and low back pains/sprains; calf and heel problems (plantar fasciitis); low testosterone; and, mood
swings. (Tr. 135-141, 162, 178-179, 203) The Commissioner denied his application initially and
on reconsideration. (Tr. 193-196) The Administrative Law Judge (“ALJ”) held an administrative
hearing on September 5, 2012. (Tr. 56-83) Plaintiff was present and represented by counsel.

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 Plaintiff originally alleged on onset date of September 7, 2009. (Tr. 135-141) However, he later amended his onset
date to July 3, 2011. (Tr. 60) 

At the time of the administrative hearing, Plaintiff was 30 years old and possessed a
Bachelor of Science Degree in botany. (Tr. 59, 247-250) The Plaintiff had past relevant work
(“PRW”) experience as a metal press machine operator. (Tr. 15, 62, 163-164, 170-171) Records
indicate he stopped working in September 2009, when he moved out of state to care for his sick
wife and newborn baby. (Tr. 162)
On April 26, 2013, the ALJ concluded Plaintiff’s disorder of the back was severe, but did
not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation
No. 4. (Tr. 12-13) After partially discrediting the Plaintiff’s subjective complaints, the ALJ
determined the Plaintiff retained the residual functional capacity (“RFC”) to perform a full range
of light work. (Tr. 13) Utilizing Medical-Vocational Guideline 204.00, the ALJ found the Plaintiff
could perform work that exists in significant numbers in the national economy. (Tr. 16)
On July 17, 2014, the Appeals Council denied the Plaintiff’s request for review. (Tr. 1-3)
Subsequently, Plaintiff filed this action. (ECF No. 1) This matter is before the undersigned by
consent of the parties. (ECF No. 5) Both parties have filed appeal briefs, and the case is now ready
for decision. (ECF Nos. 11, 12)
II.

Applicable Law:
This court’s role is to determine whether substantial evidence supports the Commissioner’s

findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). We must affirm
the ALJ’s decision if the record contains substantial evidence to support it. Blackburn v. Colvin,
761 F.3d 853, 858 (8th Cir. 2014). 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

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evidence exists in the record that would have supported a contrary outcome, or because the court
would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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, we must affirm the ALJ’s
decision. Id.
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). 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). 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)(4). Only if he reaches
the final stage 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

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(8th Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000);
20 C.F.R. § 404.1520(a)(4)(v).
III.

Discussion:
Of particular concern to the undersigned is the ALJ’s step two determination. At Step Two,

a claimant has the burden of providing evidence of functional limitations in support of their
contention of disability. Baker v. Colvin, July 22, 2015 (8th Cir. 2015); Kirby v. Astrue, 500 F.3d
705, 707 (8th Cir. 2007). “An impairment is not severe if it amounts only to a slight abnormality
that would not significantly limit the claimant’s physical or mental ability to do basic work
activities.” Id. (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987); 20 C.F.R. § 404.1521(a)). “If
the impairment would have no more than a minimal effect on the claimant’s ability to work, then
it does not satisfy the requirement of step two.” Id. (citing Page v. Astrue, 484 F.3d 1040, 1043
(8th Cir. 2007)).
The ALJ concluded that the Plaintiff’s only severe impairment was a disorder of the back.
However, in reviewing the record, it is apparent that the Plaintiff also suffered from plantar
fasciitis. Records dating back to August 10, 2011, document his complaints of heel pain. (Tr. 259273, 533-537) He complained of bilateral foot pain shooting up into his calf. Dr. Sean Baker noted
the pain was of such severity that it limited him to standing no more than one hour at a time. When
Naproxen failed to alleviate his pain, Dr. Baker prescribed physical therapy for a diagnosis of pain
with compression of the mid-feet and tenderness at the insertion of the Achilles tendon. (Tr. 274289, 313-314, 538-539)
On September 6, 2011, physical therapist David Fitting documented a slight limp on the
right lower extremity. An examination revealed increased bilateral heel cord pain, right greater
than the left. Therapist Fitting indicated that the pain functionally limited his ability to walk and

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stand. He prescribed daily heel cord stretching exercises. It appears the Plaintiff performed these
exercises as prescribed, but his pain persisted. On November 15, 2011, Dr. Baker noted continued
leg, ankle, and heel pain limiting the Plaintiff’s activities. (Tr. 302-310, 546-547) He referred the
Plaintiff to podiatrist, Dr. Mark Dotson. An initial exam by Dr. Dotson on February 7, 2012,
resulted in a diagnosis of plantar fasciitis. (Tr. 523) He prescribed and fitted the Plaintiff for
orthotic inserts. (Tr. 523, 524) Dr. Dotson also prescribed a Medrol-Dosepak to help the Plaintiff
get through the three-week break-in period for the inserts. Unfortunately, the inserts were effective
for only two weeks. (Tr. 526) Baffled by this, Dr. Dotson voiced his concern regarding the
Plaintiff’s slow response to conservative treatment. He advised the Plaintiff to continue taking
anti-inflammatory medications and using the orthotic inserts daily and placed him in night splints.
On August 21, 2012, Dr. Dotson completed a medical source statement indicating he had
treated the Plaintiff for plantar fasciitis since February 2012. (Tr. 446-47, 607-608) He concluded
the Plaintiff could stand and walk for a total of one to two hours per eight-hour workday. Despite
the fact that this was the only RFC assessment completed by a treating and/or examining physician,
the ALJ discounted it. See Cline v. Colvin, 771 F.3d 1098, 1103 (8th Cir. 2014) (holding treating
physician’s opinion is entitled to controlling weight when it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in the record). Instead, he sided with the RFC assessment completed by a nonexamining consultant. (Tr. 428-435, 444) See Wildman v. Astrue, 596 F.3d 959, 967 (8th Cir. 2010)
(quotation omitted) (holding evaluation of agency psychologist who did not examine plaintiff
entitled to less weight than that of an examining source). However, because the Plaintiff’s
diagnosis of plantar fasciitis would more than minimally affect his ability to perform the standing
and/or walking requirements of light work, we do not find substantial evidence to support the

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ALJ’s conclusion that plantar fasciitis was a non-severe impairment. Accordingly, the matter must
be remanded for further consideration of the Plaintiff’s severe impairments.
We also note that the administrative hearing in this case was held on September 5, 2012,
although the ALJ did not render a final opinion until August 26, 2013. In preparation for the
hearing, the Plaintiff submitted medical evidence dated through August 2012. The only additional
medical evidence consists of a consultative mental evaluation ordered by the ALJ in October 2012
and a December 2012 letter from the Plaintiff’s treating endocrinologist, Dr. Paul Howell,
submitted at the ALJ’s request. The ALJ contends there were no records from Dr. Dotson after
August 2012, indicating that the Plaintiff’s plantar fasciitis was not severe. However, we disagree.
Given the fact that approximately 11 months passed between the administrative hearing and the
ALJ’s decision, we find the ALJ should have requested additional medical records from Dr.
Dotson prior to drawing this conclusion. See Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010)
(holding ALJ has duty to request additional medical evidence when a critical issues is undeveloped
and the records presented to him do not provide sufficient medical evidence to determine whether
the claimant is disabled). Because he failed to do so, on remand, the ALJ is directed to re-contact
Dr. Dotson to obtain any additional records documenting the Plaintiff’s treatment for plantar
fasciitis. An RFC assessment from the Plaintiff’s primary care physician, Dr. Sean Baker, should
also be obtained to ensure the record is developed fully with regard to the Plaintiff’s work-related
limitations.
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

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sentence four of 42 U.S.C. § 405(g).
DATED this 11th day of February, 2016.
/s/Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE 

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