Smithson v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on November 6, 2015. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JANET GAIL SMITHSON
v.

PLAINTIFF
Civil No. 2:14-cv-2204-MEF

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Janet Smithson, 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 applications for DIB on April 17, 2012, alleging a disability onset

date of January 1, 2012, due to back problems, hearing issues, migraine headaches, high blood
pressure, high cholesterol, and leg problems. Tr. 10, 120, 138-139. The Commissioner denied
her applications initially and on reconsideration. Tr. 47-49, 51-52. An Administrative Law
Judge (“ALJ”) held an administrative hearing on March 12, 2013. Tr. 23-41. Plaintiff was
present and represented by counsel.
At this time, she was 51 years old with a high school education. Tr. 17. She had past
relevant work (”PRW”) experience as a commercial cleaner, industrial cleaner, hand packer,
and laundry worker. Tr. 25, 130-137.

On April 18, 2013, the ALJ found that Plaintiff’s degenerative disk disease and
migraine headaches were 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 Plaintiff’s subjective complaints, the ALJ determined that Plaintiff retained the
residual functional capacity (“RFC”) to perform a full range of light work. Tr. 13-17. The
ALJ then applied Medical Vocational Rule 204.00 and determined the Plaintiff is not disabled.
Tr. 18.
The Appeals Council denied the Plaintiff’s request for review on July 29, 2014. Tr. 14. Subsequently, Plaintiff filed this action. ECF No. 1. This case is before the undersigned
by consent of the parties. Both parties have filed appeal briefs, and the case is now ready for
decision. ECF Nos. 9, 10.
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs and the ALJ’s opinion, and are repeated here only to the
extent necessary.
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 evidence exists in the record that would have
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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

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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 RFC determination. RFC is the

most a person can do despite that person’s limitations. 20 C.F.R. ' 404.1545 (2014). A
disability claimant has the burden of establishing his or her RFC. Vossen, 612 F. 3d at 1016.
“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.” Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010);
Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009). Limitations resulting from symptoms
such as pain are also factored into the assessment. 20 C.F.R. ' 404.1545(a)(3) (2014). The
United States Court of Appeals for the Eighth Circuit has held that a “claimant’s residual
functional capacity is a medical question.” Miller v. Colvin, 784 F.3d 472, 479 (8th Cir. 2015)
(citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, an ALJ’s determination
concerning a claimant’s RFC must be supported by medical evidence that addresses the
claimant’s ability to function in the workplace. Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir.
2012).
The Plaintiff suffers from bulging disks at multiple levels in her lumbar spine, as well
as severe right and mild left neural foraminal narrowing at the L5-S1 level and mild
degenerative disk disease.

Tr. 295.

Treatment for back pain radiating into her lower

extremities dates back to at least 2010. Tr. 202-220. Dr. Laura Adams treated the Plaintiff for
displacement of the lumbar intervertebral disk without myelopathy until November 2012,
prescribing Meloxicam, Celebrex, and Gabapentin. Tr. 194-195, 198-201, 277-281. In
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January 2013, Dr. Adams referred the Plaintiff to pain specialist, Dr. Adam Sewell. He treated
the Plaintiff on at least two occasions, documenting pain and a decreased range of motion in
the Plaintiff’s thoracic and lumbar spine, shoulders, and hips, as well as a positive bilateral
straight leg raise test and a positive Patrick’s test1 on the right. Tr. 299-306. At each encounter,
the Plaintiff reported her pain as an 8 on a 10-point scale, with 7 being her average pain score,
in spite of the prescribed medications. Dr. Sewell prescribed bilateral transforaminal lumbar
epidural sort injections and bilateral sacroiliac joint injections for sacroiliitis. He also noted
that he would consider administering bilateral occipital blocks. Tr. 303-306.
The Plaintiff reported difficulty sitting and standing for extended periods. These
allegations are bolstered by her request to stand up mid-way through the administrative hearing
and Dr. Kathleen Kralik’s notation that she required frequent repositioning, to include
standing, during her evaluation. Tr. 32, 222-228.
The record contains only one RFC assessment. A non-examining physician reviewed
the Plaintiff’s medical records and concluded she could perform a full range of light work. Tr.
253-260. Dr. Clarence Ballard went on to state that the Plaintiff was partially credible, as she
suffered only mild degenerative disk disease of the lumbar spine and migraine headaches
controlled with over-the-counter medications. Tr. 253-260. Unfortunately, both Dr. Ballard
and the ALJ failed to consider the Plaintiff’s January 2012 MRI revealing disc bulging at the
L3-L4, L4-5, and L5-S1 levels and severe right and mild left neural foraminal narrowing at the
L5-S1 level. Tr. 295. And, contrary to the ALJ’s finding, the Plaintiff was not able to manage
her back pain with prescription medication, as is evidenced by Dr. Sewell’s prescription for
spinal injections.

1

 Patrick’s test is a physical exam used to diagnose sacroiliac joint dysfunction in patients with lower back pain.

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As for the ALJ’s determination that the Plaintiff was non-compliant with treatment
because she failed to consult a neurosurgeon, the ALJ failed to note that Dr. Adams made no
formal referral. However, the Plaintiff did follow through with Dr. Adams’ referral to a pain
specialist, thereby undermining the ALJ’s finding of treatment non-compliance.
Accordingly, we find that remand is necessary to allow the ALJ to reconsider the
Plaintiff’s RFC. On remand, he is directed to obtain a consultative neurological evaluation,
complete with a thorough RFC assessment, to determine the full extent of the limitations
imposed by the Plaintiff’s back impairment. The ALJ should also request RFC assessments
from the Plaintiff’s treating doctors, Drs. Adams and Sewell.
The record also indicates that Dr. Adams treated the Plaintiff for anxiety disorder and
panic attacks during the relevant time period. She prescribed Xanax on numerous occasions.
In May 2012, Dr. Kathleen Kralik conducted a consultative mental evaluation and diagnosed
the Plaintiff with panic disorder without agoraphobia and pain disorder.

Tr. 222-228.

Although she assessed her with a global assessment of functioning score of 65-75, Dr. Kralik
indicated that she had moderate to significant impairment in her capacity to sustain persistence
in completing tasks, mild to moderate impairment in her capacity to cope with the typical
mental or cognitive demands of basic work-like tasks, and mild to moderate impairment in her
capacity to carry out activities of daily functioning. The doctor also noted the Plaintiff’s
disdain for crowds, and indicated the Plaintiff had expressed a preference for occupations
requiring minimal contact with others. Moreover, Dr. Kralik stated that the Plaintiff’s mental
impairments resulted in her being an underachiever relative to her level of intellect.

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The ALJ found the Plaintiff’s mental impairment to be non-severe. However, after
reviewing the evidence, we find that further consideration of the Plaintiff’s mental impairments
is warranted. Accordingly, on remand, the ALJ is ordered to do so.
V.

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 6th day of November, 2015.

Mark E. Ford

/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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