Carraher v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on August 16, 2012. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
DANIEL M. CARRAHER
v.

PLAINTIFF
Civil No. 11-3017

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT
MEMORANDUM OPINION

Plaintiff, Daniel Carraher, 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 his 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:
Plaintiff filed his applications for SSI and DIB on April 25, 2008, alleging disability since August

1, 2003, due to various impairments. Tr. 131-140, 165-176, 177-178, 204-210. His claims were denied at
both the initial and reconsideration levels. Tr. 87-99. An administrative hearing was held on August 21,
2009. Tr. 23-61. Plaintiff was present and represented by counsel.
At the time of the hearing, Plaintiff was 37 years old and possessed a high school education. Tr.
175. He had past relevant work (“PRW”) experience as a food service manager, waiter, maintenance
worker, and laborer in a lumberyard. Tr. 37-32, 167.
On January 11, 2010, the ALJ found that Plaintiff’s degenerative disk disease (“DDD”) of the
cervical spine, seizure disorder, depression, and borderline intellectual functioning (“BIF”) were severe,
but did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No.

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4. Tr. 71-73. After partially discrediting plaintiff’s subjective complaints, the ALJ determined that Plaintiff
retained the residual functional capacity (“RFC”) to perform less than the full range of light work involving
oc c asional climbing (ramps and stairs), balancing, stooping, crouching, and crawling and no climbing
ladders, stairs and ramps. The ALJ also concluded that Plaintiff must avoid even moderate exposure to
all workplace hazards consistent with normal seizure precautions such as heights, driving, and untended
moving machinery. She also noted that Plaintiff had a limited education. Tr. 73-77. With the assistance
of a vocational expert, the ALJ found plaintiff could return to his PRW as a deliverer and banquet waiter
as those positions were actually performed by Plaintiff. Tr. 77-78.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied on
January 28, 2011. Tr. 1-7. 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 No. 8, 9.
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). 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

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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).
III.

Discussion:
Under the regulations, “if a claimant files additional medical evidence with a request for review

prior to the date of the [Commissioner’s] final decision, the Appeals Council MUST consider the additional
evidence if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the

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date of the ALJ’s decision.” Williams v. Sullivan, 905 F.2d 214, 215-216 (8th Cir. 1990). Once it is clear
that the Appeals Council has considered newly submitted evidence, we do not evaluate the Appeals
Council’s decision to deny review. Instead, our role is limited to deciding whether the administrative law
judge’s determination is supported by substantial evidence on the record as a whole, including the new
evidence submitted after the determination was made. See, e.g., Nelson v. Sullivan, 966 F.2d 363, 366
(8th Cir. 1992); Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). Of necessity, that means that
we must speculate to some extent on how the administrative law judge would have weighed the newly
submitted reports if they had been available for the original hearing. We consider this to be a peculiar task
for a reviewing court. See Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994).
In the present case, Plaintiff submitted a great deal of additional medical evidence that was
considered by the Appeals Council prior to their denial of review. In considering the record as a whole,
including the new evidence submitted, we note that the ALJ failed to find Plaintiff’s right knee impairment
to constitute a severe impairment. The ALJ noted that Plaintiff underwent surgery to correct a fractured
patella in early June 20091, but was noncompliant with rehabilitation measures following surgery. While
we do agree that Plaintiff removed his knee brace prematurely and against medical advice, necessitating
a second surgery ten days following the first, additional records also reveal that, in spite of treatment
compliance, Plaintiff continued to experience chronic right knee pain and additional seizures resulting in
exacerbation of his knee pain. In December, 2009, Dr. Merwin Moore2 noted no improvement in
Plaintiff’s ability to extend his right knee. Tr. 719. His knee continued to buckle, and there was an

1

Plaintiff also suffered from seizure disorder and records reveal that Plaintiff injured his knee in a fall
while experiencing a seizure. Although records do reveal some noncompliance on Plaintiff’s part with regard to
taking his anti-seizure medications, at the time of the accident, it does appear that Plaintiff was compliant.
2

Dr. M oore is an orthopedic surgeon at Bone and Joint Associates, PLLC in M ountain Home,

Arkansas.

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obvious loss of the patellar tendon repair. He concluded that Plaintiff’s only real option would be to
reconstruct the knee with an allograft or a synthetic graft.

However, Dr. Moore stated that Plaintiff

needed to get his seizure disorder under control before this could be done, as continued seizures would
likely result in re-injury.
In February and July 2010, one of Plaintiff’s treating doctors, Dr. Paul Wilbur, completed RFC
assessments. Tr. 13-17, 594-600, 608-614, 705-711, 748-759. Dr. Wilbur concluded that Plaintiff’s
abnormal right knee function initially resulted from a rupture of the patellar tendon that persisted status
post surgical repair and would result in constant pain severe enough to interfere with the attention and
concentration needed to perform even simple work tasks. He indicated that Plaintiff could not walk a city
block without rest or severe pain, could sit no more than 2 hours at one time, and could stand for 20 to 45
minutes at one time before needing to sit down or walk around. Further, he indicted Plaintiff would be able
to stand and walk for a total of less than 2 hours per 8-hour workday. Dr. Wilbur stated that Plaintiff
could frequently lift up to 50 pounds; could rarely twist, stoop, and crouch; and, could never climb ladders
or stairs. He indicated that Plaintiff also suffered from seizure disorder and mental problems that would
affec t his ability to work at a regular job on a sustained basis. Dr. Wilbur then went on to opine that
Plaintiff met or exceeded the requirements for listing 1.02 for major dysfunction of a joint, and that his
seizure disorder met or exceeded the epilepsy listing of 11.02. Tr. 9-10, 709-11.
Although after the date of the ALJ’s final decision in this case, emergency room records dated
April 2010 indicate that Plaintiff’s knee problems persisted. Tr. 701. At this time, he presented with
complaints of knee pain, stating that he had fallen in the parking lot, but was not certain whether his knee
gave way or he experienced a seizure. Plaintiff struck his head and neck, resulting in lacerations. He was
diagnosed with chronic knee instability with exacerbation. Tr. 701.

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Again, in May 3, 2010, Plaintiff sought out emergency treatment for his chronic knee pain. Tr.
651-659. He requested something for the pain and a splint for his knee. Plaintiff was diagnosed with
chronic knee pain status post patella fracture with rupture of the patella tendon with a history of revisions.
Plaintiff was noted to have painful range of motion in his right knee. Tr. 635-650.

And, in June 2010,

Plaintiff presented in the emergency room after his right knee gave out on him. Tr. 688-694. An
examination revealed a right knee deformity and the inability to fully extend his leg. X-rays showed a
dislocation of the patella. In July 2010, Plaintiff fell again, after his leg gave out on him. Tr. 684-687.
Had this additional evidenc e been before the ALJ, we do believe it would have impacted her
decision in this case. Ac c ordingly, we believe remand is necessary to allow the ALJ to review and
evaluate all of the additional medical evidence presented. The ALJ is reminded that the assessment of
a treating physician must be properly considered. If it is determined that the evidence does not support
the doctor’s assessment, then the ALJ must provide c lear reasons for discounting the assessment.
Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007).
The record also reveals that Plaintiff was suffering from BIF, which the ALJ concluded was a
severe impairment. She did not, however, include this in the hypothetical question posed to the vocational
expert, instead opting to say only that Plaintiff had a limited education. Lucy v. Chater, 113 F.3d 905, 908
(8th Cir.1997) (holding that borderline intellectual functioning is a significant nonexertional impairment that
must be considered by a vocational expert); Foreman v. Callahan, 122 F.3d 24, 26 (8th Cir. 1997)
(same). “If a hypothetical question does not include all of the claimant’s impairments, limitations, and
restrictions, or it is otherwise inadequate, a VE’s response cannot constitute substantial evidence to support
a conclusion of no disability.” See Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998). Therefore, remand
is also necessary to allow the ALJ to re-examine Plaintiff’s mental impairment and question the VE
accordingly. See Foreman v. Callahan, 122 F.3d 24, 26 (8th Cir. 1997).

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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 16th day of August 2012.

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

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