Beneux v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on October 7, 2015. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

TINA BENEUX

PLAINTIFF

v.

Civil No. 2:14-CV-2202-MEF

CAROLYN COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Tina Beneux, 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). 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 her application for DIB on August 1, 2012, alleging an onset date of July 12,

20111, due to extreme fatigue, pain, panic disorder, depression, human immunodeficiency virus

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 Plaintiff had filed a prior application for benefits, alleging an onset date of April 20, 2010. Tr. 67, 90-98. This
application resulted in a final decision denying benefits on July 11, 2011.

(“HIV”), general malaise, and concentration deficits. Tr. 200-206, 232, 241-242, 256. The
Commissioner denied Plaintiff’s applications initially and on reconsideration. Tr. 109-137, 141145. An Administrative Law Judge (“ALJ”) held an administrative hearing on August 26, 2013.
Tr. 64-86. Plaintiff was present and represented by counsel.
At the time of the hearing, the Plaintiff was 38 years old and possessed a high school
education. Tr. 19-20, 30, 68. Her past relevant work (“PRW”) experience was as a cashier II. Tr.
19, 233-234.
On September 19, 2013, the ALJ found Plaintiff’s asymptomatic HIV infection, major
depressive episode, and panic attack disorder 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. 1214. After partially discrediting Plaintiff’s subjective complaints, the ALJ determined she retained
the residual functional capacity (“RFC”) to perform light work involving simple, routine, and
repetitive tasks; simple, work-related decisions with few, if any, changes; and, no more than
incidental contact with coworkers, supervisors, and the general public. Tr. 14. With the assistance
of a vocational expert, he found the Plaintiff could perform work as machine tenderer, assembler,
and housekeeper. Tr. 20.
The Appeals Council denied the Plaintiff’s request for review on August 20, 2014. Tr. 14. Subsequently, Plaintiff filed this action. ECF No. 1. This case is before the undersigned by
consent of the parties. ECF No. 6. Both parties have filed appeal briefs, and the case is now ready
for decision. ECF Nos. 9, 10.
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

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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
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

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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 (8th Cir. 1982); 20 C.F.R. § 404.1520(a)(4)(v).
III.

Discussion:
Of particular concern to the undersigned is the ALJ’s failure to develop the record

concerning the Plaintiff’s work-related limitations. The ALJ owes a duty to the claimant to
develop the record fully and fairly to ensure his decision is an informed decision based on sufficient
facts. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). He should “recontact a treating
or consulting physician if a critical issue is undeveloped.” Johnson v. Astrue, 627 F.3d 316, 320
(8th Cir. 2010) (quotation, alteration, and citation omitted).
The Plaintiff suffers from HIV infection controlled via anti-retroviral medication,
depression, and panic disorder. She contends that the combination of her mental impairments and
the side effects of Atripla cause fatigue and impaired concentration making it impossible for her
to stay on task and complete tasks in a timely manner. We note that Atripla is an anti-HIV
medication that can cause serious psychiatric problems, drowsiness, dizziness, tiredness, trouble
concentrating, and trouble sleeping. PDR HEALTH, Atripla, at http://www.pdrhealth.com/drugs
/atripla#side-effects (last accessed October 1, 2015). Further, by definition, major depressive
disorder requires the presence of either a depressed mood or loss of interest or pleasure in nearly
all activities for a period of at least two weeks. See DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS-5 163 (5th ed. 2015). “The individual must also experience at least four
additional symptoms drawn from a list that includes changes in appetite or weight, sleep, and

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psychomotor activity; decreased energy; feelings of worthlessness or guilt; difficulty thinking,
concentrating, or making decisions; or recurrent thoughts of death or suicidal ideation. . . .” Id.
Panic disorder, on the other hand, is characterized by recurrent, unexpected surges of intense fear
or intense discomfort known as panic attacks followed by at least one month of persistent concern
or worry about additional panic attacks or their consequences or a significant maladaptive change
in behavior related to the attacks. Id. at 209. Interestingly, many individual suffering from panic
disorder often anticipate a catastrophic outcome from a mild medical symptom or medication side
effect, rendering them intolerant of medication side effects. Id. at 210.
The record is replete with notations of the Plaintiff’s fatigue, depression, panic attacks, and
impaired concentration. In June 2011, just prior to her onset date, Dr. Jimmy Acklin restarted her
on Trazodone and Paroxetine following a three-month medication hiatus. Tr. 466-472, 549-550.
At this time, she complained of insomnia, fatigue, decreased motivation, and depression. Dr.
Acklin diagnosed worsening depression and panic disorder.
On September 24, 2011, the Plaintiff reported some improvement in her sleep habits due
to the addition of Trazodone, but stated that her daytime anxiety persisted. Tr. 474-483, 553-563.
Further, she disclosed a sense of great danger and panic, as well as some continued sleep
disturbance. Dr. Acklin diagnosed “unchanged” anxiety and prescribed Buproprion in lieu of the
Paroxetine.
On June 20, 2012, the Plaintiff felt that her antidepressants were not working. Tr. 495505, 573-584, 593-603. She reported constant worry and anxiety with associated chest pain,
difficulty sleeping, and anhedonia. Dr. Acklin’s notes reveal that the Plaintiff was both anxious
and depressed. He documented a deterioration in her depression and prescribed Effexor XR,
Remeron, and Atripla.

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In September 2012, the Plaintiff discontinued Effexor because her insurance did not cover
it. Tr. 604-606, 617-621. She recounted persistent anxiety, depressed mood, and low energy. Dr.
David King, an associate of Dr. Acklin’s, noted that she appeared both anxious and depressed and
prescribed Venlafaxine, Remeron, and Atripla.
On October 22, 2012, Dr. Marufa Zaman, another associate of Dr. Acklin, evaluated the
Plaintiff. Tr. 607-610. She reported more frequent and intense panic attacks, occurring 2 to 3
times per week and lasting 25-45 minutes. Dr. Zaman diagnosed “deteriorated” panic disorder
and prescribed Venlafaxine, Remeron, and Atripla.
In November 2012, the Plaintiff underwent a consultative mental evaluation with Dr.
Robert Spray. Tr. 585-589. She reported an inability to work due to exhaustion, fatigue, and
general malaise. The Plaintiff also complained of difficulty sleeping and recounted experiencing
two to three panic attacks per week with associated rapid heartbeat, sweating, shakiness, and
feeling as if she were going to die. Dr. Spray noted that she seemed somewhat anxious with a
blunted affect. He diagnosed her with major depressive episode, panic attack disorder, and
provisional borderline intellectual functioning, and assessed her with a global assessment of
functioning score of 50-55. Dr. Spray then found she had moderate difficulty with attention and
concentration. Further, he concluded that distractions and poor concentration may contribute to
her inability to complete tasks in a timely manner, and opined that she would not be able to manage
funds without assistance. However, the ALJ did not ask him to complete an RFC assessment or
to elaborate on his statement concerning her “inability to complete tasks in a timely manner.”
On July 22, 2013, the Plaintiff began seeing Dr. Rozan Razzouk, an associate of Dr.
Acklin’s. Tr. 638-640. She complained of persistent depression and anxiety with panic attacks

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affecting her ability to focus and concentrate on a daily basis. Dr. Razzouk noted that her
medications included Venlafaxine, Atripla, and Remeron.
This same date, Dr. Razzouk completed a medical source statement. Tr. 642-644. He
indicated this was his first time to treat her. Her diagnoses included HIV infection, panic disorder,
anxiety, and depression. As per the Plaintiff, Dr. Razzouk indicated that her symptoms were severe
enough to interfere with her attention and concentration and to affect her ability to tolerate work
stress. Further, he found she would need unscheduled breaks, need to lie down at unpredictable
times, and would miss more than four days of work per month.
On September 26, 2013, the Plaintiff returned with persistent complaints of anxiety. Tr.
647-650. She also reported restlessness, irritability, difficulty concentrating, and chest tightness
associated with her panic attacks. Dr. Razzouk assessed her with “deteriorated” anxiety and
prescribed Fluoxetine and Atripla.
On November 5, 2013, Dr. Razzouk again diagnosed the Plaintiff with “deteriorated”
depression. Tr. 656-659. He administered a patient health questionnaire used to screen, diagnose,
and monitor the severity of her depression. Although the questionnaire is not included in the
record, Dr. Razzouk noted that her score increased to 21, signifying both severe symptoms as well
as a deterioration in her condition.2 Accordingly, he increased her Fluoxetine dosage.
The Plaintiff’s statements and testimony regarding her disability claim also support the
symptoms documented in her medical records. On her adult function report, the Plaintiff reported
the ability to perform a number of household tasks, but stated that she rests “when needed” and

2

 Typical symptoms rated on the PHQ-9 include level of interest or pleasure in doing things; feeling down,
depressed, or hopeless; trouble falling or staying asleep or sleeping too much; feeling tired or having little energy;
poor appetite or overeating; difficulty concentrating; feeling bad about oneself; and, thoughts of harming self or
others. See Patient Health Questionnaire, at http://phqscreeners.com/pdfs/02_phq-9/english.pdf (last accessed
October 1, 2015).

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can only read books when she can focus. Tr. 243-250. Further, she has repeatedly listed extreme
fatigue, panic attacks, depression, HIV, tiredness, sickness, and an inability to focus for long
periods of time as the reasons for her inability to work. Tr. 232.
After reviewing the evidence of record, the undersigned has some concerns regarding the
Plaintiff’s ability to concentrate on and complete tasks in a timely fashion. Dr. Spray’s comment
that she is distractible and may be unable to complete tasks in a timely manner makes it clear that
there is some impairment in this area of functioning. However, her exact level of impairment is
unclear. And, without additional information, we cannot say that substantial evidence supports
the ALJ’s RFC determination or his findings concerning her ability to perform work as a machine
tender, assembler, or housekeeper. These jobs undoubtedly require the ability to concentrate and
meet production quotas.

Therefore, the undersigned must remand this matter for further

development of the record.
On remand, the ALJ is directed to obtain RFC assessments from Drs. Spray and Razzouk.
In so doing, the ALJ should include questions that will aid him in determining how the Plaintiff’s
fatigue, concentration deficits, and difficulty completing tasks in a timely manner will affect her
ability to perform work-related activities. He should also recall the vocational expert to testify
concerning how these limitations will affect her ability to perform work that exists in the national
economy.
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 7th day of October, 2015.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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