Duncan v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on December 17, 2015. (lw)

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

WILLIAM DUNCAN

.

PLAINTIFF

V.

Civil No. 2:15-cv-02013-MEF

CAROLYN W. COLVIN, Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, William Duncan, 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 claim for supplemental security income (“SSI”) under Title XVI of the Social Security
Act (hereinafter “the Act”), 42 U.S.C. § 1382. 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 SSI on July 30, 2012, alleging an onset date of September

12, 1991,1 due to seizures. Tr. 9, 170-178, 189, 204-205. The Commissioner denied his application
initially and on reconsideration. The Administrative Law Judge (“ALJ”) held an administrative
hearing on April 24, 2013; however, the Plaintiff failed to appear. Tr. 51-63. Accordingly, he

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 Records reveal that the Plaintiff had received SSI benefits from 2005 until 2010, but said benefits were
discontinued when he was incarcerated for vehicular homicide. Tr. 27-28. This is not, however, a direct appeal of
the discontinuation of his benefits.

held a supplemental hearing on August 1, 2013. Tr. 22-50. Plaintiff was present and represented
by counsel.
At the time of the hearing, Plaintiff was 36 years old and possessed a General Education
Diploma. Tr. 26-27. He had no past relevant work (“PRW”) experience. Tr. 16, 27, 206-213.
On September 27, 2013, the ALJ concluded that the Plaintiff’s seizure disorder was severe,
but did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P,
Regulation No. 4. Tr. 11. After partially discrediting the Plaintiff’s subjective complaints, the
ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform a full
range of work at all exertional levels but with the following nonexertional limitations:
He is limited to no climbing of ladders, ropes, or scaffolds; he must avoid all
exposure to hazards, including exposure to unprotected heights, moving machinery,
and driving as part of work; and he must avoid exposure to temperature extremes,
in particular extremes in heat. Further, the claimant is limited to work involving
simple, routine, repetitive tasks due to the fact that stress could potentially
exacerbate his seizure disorder.
Tr. 12. With the assistance of a vocational expert, the ALJ then found the Plaintiff capable of
performing work as a hand packager, fabric layout worker, laundry folder, lampshade assembler,
and compact assembler. Tr. 16.
The Appeals Council denied the Plaintiff’s request for review on November 19, 2014. Tr.
1-3. Subsequently, Plaintiff filed this action. ECF No. 1. This matter is before the undersigned
by consent of the parties. ECF No. 7. 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
a preponderance but it is enough that a reasonable mind would find it adequate to support the

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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. § 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. § 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

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given his or her age, education, and experience. 20 C.F.R. § 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. 20 C.F.R. § 416.920(a)(4)(v).
III.

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

regard to the Plaintiff’s RFC. The ALJ owes a duty to a 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). An ALJ should recontact a treating or consulting
physician if a critical issue is undeveloped or underdeveloped, and should order consultative exams
when the medical records presented to him do not provide sufficient medical evidence to determine
whether the claimant is disabled. Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010).
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. ' 416.945
(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).
Here, the Plaintiff suffered a head injury at age 13 and began experiencing seizures. Tr.
273. Although the frequency of his seizures is not clear, the record does clearly indicate that the
Plaintiff continues to experience seizures in spite of medication compliance. Tr. 305. The record
contains two RFC assessments completed by non-examining consultants in 2012 concluding that
the Plaintiff could perform work at all exertional levels with only seizure precautions. Tr. 69-71,
80-81. Unfortunately, there was little to no medical evidence available at the time of their

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assessments. In fact, the majority of the evidence is dated between January 2013 and June 2013.
And, we note that the Plaintiff’s treating doctor (s) restricted him with regard to driving and stress
in June 2013. Because the RFC assessments contained in the record do not taking into account all
of the evidence, we find that remand is necessary to allow the ALJ to obtain a seizure statement
and RFC assessment from the Plaintiff’s treating doctor(s) at the Good Samaritan Clinic. If the
doctor(s) are unwilling or otherwise unable to provide this information, then the ALJ should obtain
a consultative neurological evaluation complete with a thorough RFC assessment.
In reviewing the record, we also note that the ALJ did not find the Plaintiff’s seizure log to
be reliable, commenting on the alleged duration (10 to 70 minutes) and frequency (an average of
2 to 3 per month) of the seizures and the Plaintiff’s failure to seek out emergency medical attention.
Tr. 255-258. The Plaintiff testified that his wife completed the log for him to provide to his doctor.
Although the Plaintiff’s wife testified at the administrative hearing, the ALJ failed to question her
regarding the type, frequency, and duration of the seizures she recorded. As such, we are unable
to discern whether the time indicated for each seizure was the actual length of the convulsion or
included the period of time the Plaintiff was “out of it” following the seizure. We are also unable
to determine whether the seizures on the log were grand mal seizures or seizures of another type,
as the Plaintiff has endorsed experiencing two types of seizures. Tr. 273. This is particularly
significant, given that Listing 11.02 requires documentation of a three-month history wherein the
Plaintiff was on medication but experienced more than one grand mal or psychomotor seizure per
month. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.02. Accordingly, we find that remand is also
necessary to allow the ALJ to develop the record further in this regard.

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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
sentence four of 42 U.S.C. § 405(g).
DATED this 17th day of December, 2015.
/s/Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE 

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