Combs v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on October 29, 2015. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TINA ANNE COMBS
v.

PLAINTIFF
Civil No. 2:14-cv-2250-MEF

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Tina Combs, 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, disability insurance benefits (“DIB”), and
supplemental security income (“SSI”) benefits 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 filed her original applications for DIB and SSI on December 3, 2009, alleging

a disability onset date of August 15, 2009, due to bulging and thinning disks. Tr. 96-107, 139,
156-157, 172-173, 189, 197. The Commissioner denied her applications initially and on
reconsideration. Tr. 43-54. An Administrative Law Judge (“ALJ”) held an administrative
hearing on October 7, 2010, and entered an unfavorable decision on December 20, 2010. Tr.
8-17, 22-38, 64-65. On August 8, 2013, this Court remanded the case for further administrative
proceedings. Tr. 421-428.
The ALJ held a supplemental administrative hearing on January 24, 2014. Tr. 388420. Plaintiff was present and represented by counsel. At this time, she was 39 years old with

a limited education and specialized work training as certified nursing assistant (“CNA”). Tr.
15, 25, 139, 144, 391. She had no past relevant work experience. Tr. 15, 28-29, 140, 146-153,
395.
On August 7, 2014, the ALJ found that Plaintiff’s lumbar osteoarthritis, morbid obesity,
chronic obstructive pulmonary disease (“COPD”), and situational depression were severe, but
did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P,
Regulation No. 4. Tr. 373-375. After partially discrediting Plaintiff’s subjective complaints,
the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform
sedentary unskilled work involving occasional climbing, balancing, stooping, kneeling
crouching, and crawling and no concentrated exposure to pulmonary irritants such as odors,
dusts, and gases. Tr. 375. With the assistance of a vocational expert, the ALJ found Plaintiff
could perform work as a prep clerk or ordinance inspector/checker. Tr. 380.
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, 11.
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
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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), 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
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perform other work in the national economy given his or her age, education, and experience.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(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), 416.920(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, 416.945. A
disability claimant has the burden of establishing his or her RFC. Vossen v. Astrue, 612 F. 3d
1011, 1016 (8th Cir. 2010). “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), 416.945(a)(3). 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 an impairment to her lower back complicated by morbid
obesity. Records from the Good Samaritan Clinic dating back to February 2009, reveal
consistent complaints of pain radiating into her right hip and down her leg. In October of 2009,
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an MRI of her lumbar spine revealed disk desiccation at the L5-S1 level with a right lateral
recess disk herniation that contacted and deviated the right Sl nerve root as well as right
foraminal stenosis. Tr. 217, 252.
Between February 2009 and February 2010, physical examinations revealed tenderness
to palpation in the lower back. Tr. 246-253. Her treatment included prescriptions for
nonsteroidal anti-inflammatory drugs and muscle relaxers. The doctor also noted that a charity
application was completed in an attempt to qualify Plaintiff for services through the University
of Arkansas Medical School. However, Plaintiff testified that she was unable to receive said
services due to the absence of a vacancy within the program. Tr. 30-31, 395-396.
On January 25, 2010, Plaintiff underwent a general physical examination with Dr. C.R.
Magness. Tr. 218-225. An examination revealed an abnormal gait due to her back and right
leg, a greatly decreased range of motion in both ankles and her lumbar spine, a poor ability to
stand and walk without an assistive device, and an inability to walk on heel and toes and arise
from a squatting position. Dr. Magness diagnosed Plaintiff with DDD at the L4-5 level with
right lower radiculopathy, obesity, COPD, and situational depression/marginal IQ. Tr. 224.
He then assessed her with severe limitations in the ability to walk, sit, carry, and lift and
moderate to severe limitations in the ability to stand. Tr. 224.
Between June 2010 and January 2011, Plaintiff was treated in the emergency room on
at least four occasions due to back pain. Tr. 298-367. In June, Plaintiff injured her lower back.
An exam revealed severe tenderness to palpation of the sacrum. X-rays were negative, and
she received a Demerol and Phenergan injection and prescriptions for Percocet and Lorazepam
for a diagnosis of a sacrum contusion. In August, she returned with complaints of lower back

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pain and difficulty voiding. Plaintiff was diagnosed with acute pyelonephritis and a urinary
tract infection and prescribed antibiotics and Hydrocodone.
In January 2011, Plaintiff slipped on icy steps and fell. Tr. 352-367. A physical exam
revealed tenderness and pain to palpation of the left lumbosacral paraspinous and midline.
Records indicate that she had received an injection for back pain in the emergency room the
previous evening. At this time, she rated her pain as an 8 on a 10-point scale and indicated
that it was aggravated by certain positions, twisting, and bending. She was given injections of
Nubain, Phenergan, and Norflex and prescriptions for Hydrocodone, Prednisone, and
Ibuprofen.
In February 2011, the Plaintiff returned to the Good Samaritan Clinic complaining of
right back, hip, and leg pain. Tr. 576. She indicated that sitting exacerbated her pain. An
exam revealed tenderness over the L5 level and both legs. The doctor diagnosed an L5-S1
level disk herniation with nerve root radiculopathy and prescribed Mobic, Flexeril, and
Neurontin. He also noted that no one would perform surgery on her due to her lack of
insurance.
On April 18, 2011, her back pain persisted. Tr. 575. An exam revealed continued
lumbar radiculopathy. In August, she reported a deterioration in her condition and worsening
pain. Tr. 574. The doctor increased her Neurontin dosage, noting that she was awaiting
approval of her disability application so she could get her back “fixed.”
On December 14, 2011, the Plaintiff requested and received a refill of Flexeril. Tr.
573. In May, she reported continued pain and numbness down her right leg. Tr. 572. An
exam revealed decreased sensation in the right leg, although she was able to walk without
difficulty. Again, the doctor increased her Neurontin dosage.
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In October 2012, the Plaintiff reported a recent fall that had resulted in a trip to the
emergency room. Tr. 571. X-rays were reportedly negative. However, the paresthesia in her
right leg continued, she had pain radiating up her spine, and the right side of her pelvis and
right buttock were tender to palpation. The doctor diagnosed a back contusion secondary to a
fall and prescribed Cyclobenzaprine, gentle stretching exercises, and Aspercreme.
On March 14, 2013, the Plaintiff returned to the Good Samaritan Clinic with lower
back pain radiating into her right leg. Tr. 570. Although somewhat improved, the numbness
in her right leg persisted. The doctor diagnosed chronic lower back pain with known disk
disease and restarted her on Neurontin.
In September 2013, the Plaintiff reported a recent bout with pneumonia that had
resulted in persistent rib pain. Tr. 569. Inspiration was painful and her back pain continued.
Due to the cost of the Neurontin, the doctor prescribed Elavil instead. He also prescribed
Flexeril as a “back up.”
By December, the Plaintiff reported some improvement in her back pain. Tr. 586.
However, she was not pain free and requested an increase in her Elavil dosage. The doctor
also noted chest wall pain with coughing, advising her to return for x-rays if this did not resolve
in four weeks.
On March 26, 2014, Dr. Michael Westbrook conducted a general physical exam. Tr.
589-593. He noted decreased sensation in her right foot, difficulty standing and walking
without an assistive device, an inability to walk on heel and toes and squat and arise from a
squatting position, and a 30% deficit in the grip strength in her right hand. Although an
extremely limited RFC assessment was completed by his nurse, Dr. Westbrook indicated it
was based solely on the Plaintiff’s subjective complaints. Tr. 400, 594-599. Further, he opined
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that the Plaintiff should not perform heavy lifting, repetitive bending, pushing, or pulling and
should not lift or carry over 20 pounds. He also offered to complete a revised RFC assessment.
In April, 2014, at the ALJ’s request, Dr. Westbrook completed a revised RFC. Tr. 601607. He indicated that the Plaintiff could occasionally lift up to 50 pounds, sit and stand 45
minutes at one time for total of 3 hours per 8-hour workday, and walk 30 minutes at a time for
total of 2 hours. Further, Dr. Westbrook opined she could frequently reach, handle, finger,
feel, push and pull with both hands, and operate foot controls with both feet; occasionally climb
stairs and ramps, balance, stoop, bend, crouch, kneel, crawl, or work near moving machinery,
humidity and wetness, dust, odors, fumes, and pulmonary irritants, extreme cold, extreme heat,
and vibrations; and, never climb ladders or work near unprotected heights. Contrary to what
he stated in his treatment notes, Dr. Westbrook also indicated that the Plaintiff did not need an
assistive device for ambulation.
As previously noted, this Court previously remanded this matter for further
consideration of the Plaintiff’s RFC. More specifically, the Court directed the ALJ to consider
the Plaintiff’s need for a sit/stand option. However, in spite of Dr. Magness’ assessment of
severe sitting limitations and Dr. Westbrook’s opinion that she could sit for no more than three
hours total per day, the ALJ found the evidence did not support a sit/stand option. We disagree.
In 2009, a Disability Determination Services interviewer noted that the Plaintiff had
difficulty sitting through the interview. Tr. 136. She had to get up and move around.
Moreover, the Plaintiff reported to her doctors that sitting for extended periods exacerbates her
pain. Tr. 576, 250, 361. At the supplemental hearing, she also testified that she had to change
positions frequently, alternating among sitting, standing, and lying down. Tr. 401. And, we
can find no reported activities that would suggest the Plaintiff is capable of sitting for six hours
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per day, as determined by the ALJ. Accordingly, the undersigned cannot say that substantial
evidence supports the ALJ’s conclusion the Plaintiff can perform the range of sedentary work
identified by the ALJ. Remand is necessary to allow the ALJ to reconsider the Plaintiff’s need
for a sit/stand option and to revise his RFC determination. The ALJ should then pose a
hypothetical question to a vocational expert to determine whether the Plaintiff’s need for a
sit/stand option would prevent her from performing work that exists in significant numbers in
the national economy.
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 29th day of October, 2015.

Mark E. Ford

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

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