Huff v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on August 13, 2012. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
TERESA C. HUFF

PLAINTIFF

v.

Civil No. 10-3121

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Teresa Huff, 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 claims
for a period of disability, disability insurance benefits (“DIB”), and supplemental security income
(“SSI”) 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:
The plaintiff filed her applications for DIB and SSI on April 11, 2003, alleging an onset date of

March 28, 2002, due to degenerative disk disease (“DDD”), shoulder pain, knee pain, asthma, anxiety
disorder, depression, and post-traumatic stress disorder (“PTSD”). Tr. 52-54, 82, 121, 266-269. The
Commissioner denied Plaintiff’s application initially and on reconsideration. Tr. 26-31, 35-38. An
administrative hearing was held on December 5, 2005, and resulted in an unfavorable decision on April
28, 2006. Tr. 18-24, 302-337. After the Appeals Council rejected Plaintiff’s request for review, Plaintiff
appealed to this Court. Tr. 6-9, 391-394. On August 7, 2008, the matter was remanded back to the
Administration for further consideration. Tr. 396-401. Specifically, the ALJ was advised to resolve the
conflict between his RFC determination and the requirements of Plaintiff’s past relevant work experience
as a fast food worker and to have a psychiatric review technique form completed. On July 13, 2009, a

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second administrative hearing was held. Tr. 606-635C. Plaintiff was present and represented by
counsel.
At the time of the hearing, Plaintiff was 56 years old and possessed an eighth grade education.
Tr. 586. She had past relevant work experience as a fast food worker and a cook. Tr. 81-90, 92-99, 108113.
On May 20, 2009, the ALJ found plaintiff’s DDD, leg pain, diabetes mellitus, an danxiety
disorder were severe, but concluded they did not meet or medically equal one of the listed impairments
in Appendix 1, Subpart P, Regulation No. 4. Tr. 384-386. After partially discrediting plaintiff’s
subjective complaints, the ALJ determined that plaintiff retained the residual functional capacity
(“RFC”) to perform medium level work where the interpersonal contact is incidental to the work
performed, the complexity of the tasks is learned and performed by rote, few variables and little
judgment is involved, and the supervision required is simple, direct, and concrete. Tr. 386-389. With
the assistance of a vocational expert, the ALJ found plaintiff could perform work as a hand packager,
dishwasher, and housekeeper. Tr. 389-390, 474-480.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on November 27, 2010. Tr. 338-340, 366-377. 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.
II.

Applicable Law:
This court’s role is to determine whether the Commissioner’s findings are supported by

substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002).
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. The ALJ's decision must be affirmed if the record
contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).

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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. Haley v.
Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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, the decision of the ALJ must be affirmed. 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 her disability by establishing a physical or mental disability that has lasted at least one year and
that prevents her 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 him 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 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 age, education, and experience.
See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only if the final stage is reached 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, 416.920 (2003).

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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(a)(1). A disability claimant has
the burden of establishing his or her RFC. See Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004).
“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.” Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009); see also Jones v. Astrue, 619 F.3d
963, 971 (8th Cir. 2010) (ALJ is responsible for determining RFC based on all relevant evidence,
including medical records, observations of treating physicians and others, and claimant’s own description
of his limitations). Limitations resulting from symptoms such as pain are also factored into the
assessment. 20 C.F.R. § 404.1545(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.” 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.” Lewis v.
Barnhart, 353 F.3d 642, 646 (8th Cir. 2003); see also Jones, 619 F.3d at 971 (RFC finding must be
supported by some medical evidence).
In the instant case, the ALJ concluded that Plaintiff could perform work where the interpersonal
contact is incidental to the work performed. However, this is finding is not supported by substantial
evidence. The record is replete with evidence of Plaintiff’s anxiety, panic disorder, and PTSD. Dr.
David Bailey completed a mental evaluation of Plaintiff in May 2003. Tr. 137-144, 167. Plaintiff
reported a history of severe physical, emotional, and sexual abuse as a child.1 In adulthood, Plaintiff

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Her statements concerning the beatings and sexual abuse were substantiated by the statement of her
sister, Louise Adams. Tr. 602-603. Her father reportedly invited friends over to drink and then made Plaintiff
and her brother physically fight as their entertainment. He would also have other men hold the children down
while he beat them. And, beginning at age 11, he allowed men to sexually abuse Plaintiff. This continued until
she married at age 15.

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reported experiencing both panic attacks and recurrent memories of her childhood abuse, causing her to
avoid other people. She divulged that she had no friends and generally avoided situations where she
might have to talk to others. Dr. Bailey concluded that her symptoms were consistent with diagnoses
major depression, generalized anxiety disorder with possible panic attacks, and PTSD. He was of the
opinion that this would result in limitations in her ability to get along with the public, supervisors, and
co-workers.
In June 2003, Dr. Stephen O’Hagan completed a psychiatric review technique form after
reviewing Plaintiff’s medical records. Tr. 145-162. He diagnosed her with depressive disorder not
otherwise specified, anxiety disorder, and rule out panic attacks. Dr. O’Hagan concluded Plaintiff would
have marked limitations in interacting with the general public and moderate limitations relating to
supervisors and peers. Tr. 167.
In March 2009, Dr. Stephen Harris performed a psychological evaluation of Plaintiff and also
concluded that Plaintiff would have moderate limitations interacting appropriately with the public,
supervisors, and co-workers. Tr. 481-485. Further, in June 2009, Dr. Richard Chitsey, Plaintiff’s
treating doctor, opined that Plaintiff’s constant pain and anxiety would prevent her from being around
crowds and being able to hold down a job. Tr. 565-568. This same month, he also noted that Prozac had
been ineffective at treating her anxiety and prescribed Xanax. Tr. 572. It also appears that she had been
prescribed Buspar, Zoloft, Seroquel, and Risperdal, an antipsychotic, to treat her depression, anxiety,
and panic symptoms. Tr. 263-265, 286, 287, 289, 344-345, 504, 505, 507.
Then, in April 2011, Dr. Vann Smith found Plaintiff to be seriously limited with regard to
interacting appropriately with supervisors, co-workers, and the general public. Tr. 347-355.

The

record does reveal that Plaintiff has worked in approximately five different positions since her alleged
onset date. However, as acknowledged by the ALJ, none of these jobs rose to the level of substantial
gainful activity. And, the short duration of each job is further evidence that her mental and physical

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problems substantially interfere with her ability to perform work-related activities, even more so that the
RFC determined by the ALJ reflects. In 2009, Plaintiff told Dr. Chitsey that she had most recently
worked at Wal-Mart, but quit because she could not stand crowds. Tr. 572. And, the record is replete
with jobs Plaintiff has accepted but was unable to maintain for various reasons related to her mental and
limitations. Tr. 612-618. She also had a history of eight unsuccessful marriages, evidencing difficulty
with long-term social interaction. Tr. 137-144. Further, although she does attempt to shop for groceries
and other items, Plaintiff has reported leaving her full shopping cart in the middle of the store on
numerous occasions, due to experiencing a panic attack. Tr. 621-622.
The ALJ physical RFC determination is also suspect, as he concluded that she could perform
a full range of medium level work without exertional limitations. However, Plaintiff also suffered from
impairments resulting in pain in her shoulder, back, and neck. An MRI of her right shoulder showed a
compete tear of the distal supraspinatus tendon in March 2002. Tr. 225. In September 2003, Dr. Richard
Stewart noted decreased flexion and extension in her back and abduction and forward elevation of her
shoulders. Tr. 168-171, 174-176. At this time, x-rays of her right shoulder also revealed degenerative
changes at the ACV joint with small osteophytes and a probable bone island in the right humeral head.
Tr. 172-173. In July 2004, Plaintiff injured her left upper extremity and lower back when lifting a
watermelon at work. Tr. 253-255. Dr. John Range noted pain with range of motion beyond 60 degrees
on all planes. In October 2004, Dr. Range noted increased lower back pain with a straight leg raise on
the left and tenderness with palpitation throughout the shoulder and into the lateral upper arm. Tr. 246251.
In October 2006, Plaintiff was diagnosed with plantar fasciitis and prescribed Naprosyn. Tr.
287, 505. X-rays of both heels confirmed the presence of osteophytes on both sides. Tr. 299. This
diagnosis continued through at least January 2009. Tr. 287-289.

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In March 2007, Dr. Chitsey completed a functional capacities evaluation concluding that
Plaintiff could only occasionally reach above shoulder level, balance, push/pull, and lift/carry 11-24
pounds. Tr. 283-284, 511-512. Further, he also found Plaintiff could never bend/stoop, squat, crawl,
climb, crouch, kneel, lift/carry over 24 pounds, use her left foot for repetitive movements in operating
controls, or frequently flex or rotate her neck. Limitations with simple grasping, firm grasping, and fine
manipulation bilaterally were also noted. In November 2008, Plaintiff was treated for left arm pain, most
likely tendonitis. Tr. 546-547. In January 2009, she was treated for numbness and tinging in her feet
and hands and diagnosed with questionable peripheral neuropathy. Tr. 548-549. In March 2009,
treatment notes from Salem First Care Clinic revealed tenderness in Plaintiff’s lower back. Tr. 555-556,
560-561. Records from Dr. Chitsey this same month revealed tenderness to palpation over the left knee
cap and significant back pain. Tr. 571. In June 2009, Dr. Chitsey noted that Plaintiff’s back pain
continued. Tr. 572. In completing his assessment of Plaintiff on June 19, 2009, he noted that Plaintiff’s
knee often gave out, causing her to fall. Tr. 565-568. He then went on to provide an overly restrictive
assessment of Plaintiff that we do not find support for in the record. However, we do note that he limited
her to lifting 10 pounds or less; opined that she should never twist, stoop, crouch, or climb ladders or
stairs; was limited with regard to using both hands for grasping, turning and twisting items, and fine
manipulation; and, was limited in both arms with regard to reaching (including overhead).
After reviewing the entire record in this case, the undersigned is of the opinion that the matter
must be reversed and remanded for further consideration of Plaintiff’s RFC. It appears that both her
physical and mental impairments result in more restrictive limitations than are reflected by the RFC
determined by the ALJ. As this will ultimately impact the whether or not jobs exist in the national
economy that Plaintiff could perform, this matter will be remanded for further consideration.

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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 13th day of August 2012.

/s/J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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