Fusher v. Social Security Administration Commissioner
Filing
17
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 24, 2019. (mjm)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
LORI M. FUSHER
vs.
PLAINTIFF
Civil No. 2:18-cv-02004
NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Lori M. Fusher (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying her application for
Disability Insurance Benefits (“DIB”) under Title II of the Act.
The Parties have consented to the jurisdiction of a magistrate judge to conduct any and all
proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and
conducting all post-judgment proceedings. ECF No. 7. Pursuant to this authority, the Court issues
this memorandum opinion and orders the entry of a final judgment in this matter.
1.
Background:
Plaintiff protectively filed her disability application on October 24, 2014. (Tr. 14). In her
application, Plaintiff alleges being disabled due to bipolar disorder, borderline personality disorder,
depression, post-traumatic stress disorder, bulging discs with annular tear, sciatica, a curved spine,
arthritis, and nerve pain. (Tr. 204). Plaintiff alleges an onset date of September 14, 2009. (Tr. 14).
At the administrative hearing in this matter, Plaintiff amended that alleged onset date to July 13,
2013. (Tr. 38-39). This application was denied initially and again upon reconsideration. (Tr. 89127).
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Plaintiff requested an administrative hearing in this matter, and this hearing was held on
January 14, 2016 in Fort Smith, Arkansas. (Tr. 30-68). At this hearing, Plaintiff was present and
was represented by Fred Caddell. Id. Only Plaintiff and Vocational Expert (“VE”) Barbara Hubbard
testified at this hearing. Id.
After this administrative hearing, the ALJ entered a fully unfavorable decision on Plaintiff’s
application. (Tr. 11-24). In this decision, the ALJ found Plaintiff last met the insured status
requirements of the Act on December 31, 2014. (Tr. 16, Finding 1). The ALJ found Plaintiff had
not engaged in Substantial Gainful Activity (“SGA”) during the period from her alleged onset date
of September 14, 20091 through her date last insured of December 31, 2014. (Tr. 16, Finding 2).
The ALJ determined that, through her date last insured, Plaintiff had the following severe
impairments: degenerative disc disease of the lumbar spine; central disc bulge at L2-L3 with annular
tear; bipolar II disorder; depression; history of alcohol abuse; personality disorder with borderline
and dependent traits; and obesity. (Tr. 16, Finding 3). The ALJ also determined Plaintiff’s
impairments did not meet or medically equal the requirements of any of the Listings of Impairments
in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 16-18, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 18-23, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the capacity to perform the following:
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) except the claimant can perform work where
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In his opinion, the ALJ repeatedly stated Plaintiff’s alleged onset date was September 14, 2009
when Plaintiff actually amended that alleged onset date to July 13, 2013.
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interpersonal contact is incidental to the work performed, where the complexity of
tasks is performed and learned by rote with few variables and little judgment, and
where supervision required is simple, direct and concrete. The claimant can
occasionally push, pull, kneel, and/or crouch. The claimant would require a sit/stand
option to be exercised at one-hour intervals throughout the workday.
Id.
The ALJ determined Plaintiff was forty-three (43) years old, which is defined as a “younger
individual” under 20 C.F.R. § 404.1563(c), on her date last insured. (Tr. 23, Finding 7). The ALJ
also determined Plaintiff had at least a high school education and was able to communicate in
English. (Tr. 23, Finding 8).
Considering her RFC, the ALJ determined that, through her date last insured, Plaintiff did
not retain the capacity to perform any of her PRW. (Tr. 23, Finding 6). The ALJ then determined
whether Plaintiff retained the capacity to perform other work existing in significant numbers in the
national economy. (Tr. 23-24, Finding 10). The VE testified at the administrative hearing regarding
this issue. Id.
Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform the
requirements of representative occupations such as the following: (1) hotel cleaner/housekeeper with
approximately 1,200 such jobs in the regional economy and 137,000 such jobs in the national
economy; (2) marking clerk with approximately 2,400 such jobs in the regional economy and
283,200 such jobs in the national economy; and (3) routing clerk with approximately 540 such jobs
in the regional economy and 53,000 such jobs in the national economy. (Tr. 24). Because Plaintiff
retained the capacity to perform this other work, the ALJ determined Plaintiff had not been under
a disability (as defined by the Act) at any time from September 14, 2009 (her alleged onset date)
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through December 31, 2014 (her date last insured). (Tr. 24, Finding 11).
Plaintiff then requested the Appeals Council’s review of this unfavorable decision. (Tr. 5-7.
On December 13, 2017, the Appeals Council denied this request for review. Id. Then, on January
8, 2018, Plaintiff filed her Complaint in this action. ECF No. 1. Both Parties have filed appeal
briefs and have consented to the jurisdiction of this Court. ECF Nos. 7, 15-16. This case is now
ready for decision.
2.
Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2010); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
It is well-established that a claimant for Social Security disability benefits has the burden of
proving his or her disability by establishing a physical or mental disability that lasted at least one
year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,
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160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
a “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 his or her impairment, has lasted for at least twelve consecutive
months. See 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)
whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3.
Discussion:
In her appeal brief, Plaintiff alleges the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 15. Specifically, Plaintiff raises three arguments for
reversal: (1) the ALJ failed to develop the record as to her RFC; (2) the ALJ improperly discounted
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her subject complaints of pain; and (3) the ALJ erred as it relates to his assessment of “consistency.”
ECF No. 15 at 5-14. Because the Court finds the ALJ erred in his RFC assessment, the Court will
only address this issue.
Plaintiff claims the ALJ’s RFC determination is not supported by substantial evidence in the
record. ECF No. 15 at 5-10. Specifically, Plaintiff references the fact the ALJ relied heavily upon
the findings of Dr. Arthur Johnson, M.D. (neurological consulting evaluation) while entirely
disregarding the findings of Dr. Ahmad Al-Khatib, M.D. (neurological consulting evaluation) and
Patricia Walz, Ph.D. (mental consulting evaluation). Id. Plaintiff claims this was improper. Id.
As Plaintiff argues, and as the Court recognizes, the problem with this determination is that
all of these records are dated before Plaintiff’s amended alleged onset date. Notably, Dr. Johnson’s
findings are dated from January of 2013 while Dr. Al-Khatib’s and Dr. Walz’s opinions are from
September of 2012 (Al-Khatib) and June of 2012 (Dr. Walz). Plaintiff’s amended alleged onset date
was July 13, 2013. Thus, all of these records were outside the relevant time-period; and despite this
fact, the ALJ chose to rely on Dr. Johnson’s findings while discounting Dr. Al-Khatib’s and Dr.
Walz’s opinions.
Indeed, the ALJ specifically stated he discounted those findings because they were outside
the relevant time-period:
As for the opinion evidence, little weight is afforded to the opinions of Dr. Al-Khatib
as his examination of the claimant precedes her alleged onset date and was not,
therefore, performed within the time period relevant to this decision (Exhibit B4F).
Little weight has been afforded the opinions of Patricia Walz, Ph.D., for similar
reasons (Exhibit B1F).
(Tr. 22). The ALJ’s decision to discount Dr. Al-Khatib’s and Dr. Walz’s findings while adopting
Dr. Johnson’s findings on this basis was improper. Thus, the Court finds this case must be reversed
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and remanded.
4.
Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is not supported by substantial evidence and should be reversed and remanded. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 24th day of January 2019.
Barry A. Bryant
/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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