Eddings v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION Signed by Honorable James R. Marschewski on March 14, 2012. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
PEGGY SUE EDDINGS

PLAINTIFF

v.

Civil No. 11-3023

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Peggy Sue Eddings, 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 disability insurance benefits (“DIB”) and supplemental insurance benefits (“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 February 7, 2008, alleging an onset date

of May 1, 2002, due to lumbar fractures, breast cancer, congestive heart failure, an atrial fistula, episodes
of syncope, and a torn rotator cuff in her right shoulder. Tr. 121-131, 237, 255-256, 288-289. Her
applications were initially denied and that denial was upheld upon reconsideration. Tr. 80-83. Plaintiff
then made a request for a hearing by an Administrative Law Judge (“ALJ”). An administrative hearing
was held August 20, 2009. Tr. 9-52. Plaintiff was present and represented by counsel.
At this time, plaintiff was 36 years of age and possessed a high school education and certification
as a certified nurse aid (“CNA”). Tr. 67, 243, 246-254. She had past relevant work (“PRW”) experience
as a CNA, Dog Breeder, Nursing Home cook, and Child Care Worker. Tr. 67, 237, 265-272, 273-284.
On January 20, 2010, the ALJ found that plaintiff’s chronic heart disease, back disorder
(degenerative disk disease L3-4 level/fracture of acute process of L1-2 level), right rotator cuff tear, and
ductal cell carcinoma of the left breast were severe, but did not meet or medically equal one of the listed

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impairments in Appendix 1, Subpart P, Regulation No. 4. Tr. 62-64. After partially discrediting
plaintiff’s subjective complaints, the ALJ determined that plaintiff retained the residual functional
capacity (“RFC”) to perform light work requiring occasional pushing/pulling with either upper extremity
and no overhead reaching with either upper extremity or climbing ladders/scaffolds/ropes. Tr. 64-67.
He also concluded Plaintiff should observe seizure precautions, but should not drive as a part of her work
or be exposed to unprotected heights, heavy equipment, or unprotected machinery. She could, however,
frequently climb ramps ad stairs, balance, stoop, kneel, crouch, and crawl. With the assistance of a
vocational expert, the ALJ found plaintiff could perform work as a laundry worker, bench assembler,
and cashier II. Tr. 68-69.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on January 24, 2011. Tr. 1-5. 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. 7, 8.
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 inconsistent positions from the evidence and one of those positions represents the findings

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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:
Of particular concern to the undersigned is the ALJ’s RFC assessment. 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

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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 present case, the evidence reveals that Plaintiff was suffering from a rotator cuff tear in
her right shoulder. On December 27, 2007, Plaintiff had reportedly fallen in the rain and injured her
right leg, knee, and shoulder, and was unable to use her right arm. Tr. 456-457. She was taking
Ibuprofen, but it was not helping. An examination revealed decreased abduction in the right shoulder
and tenderness in the right lumbosacral spine. Dr. Dunaway diagnosed her with shoulder pain, sciatica,
and a possible torn rotator cuff. He ordered an MRI of her shoulder and prescribed Tramadol and
Celebrex. Tr. 456-457. The MRI revealed moderate to severe degenerative changes at the right AC joint
and tendinosis versus a partial tear of the right rotator cuff. Tr. 526.
On January 7, 2008, Plaintiff returned for the results of her MRI. Tr. 454-455, 607-608. Her
right shoulder remained tender and swollen and exhibited a decreased range of motion. Dr. Dunaway
diagnosed Plaintiff with valvular heart disease, a right rotator cuff tear, and lumbar pain. He prescribed
occupational therapy, Lasix, Celebrex, and Flexeril. Tr. 454-455.

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On January 9, 2008, Plaintiff was referred to Ted Borchers for physical therapy. Tr. 521. She
was placed on hot packs followed by a comprehensive home exercise program. Plaintiff was discharged
with a home exercise program following this session Tr. 521.
On March 25, 2008, Plaintiff underwent a general physical examination with Dr. Shannon
Brownfield. Tr. 625-630. Plaintiff complained of a probable right shoulder rotator cuff tear, occasional
dizzy spells associated with falls, a history of CHF and valve problems, chest pain, shortness of breath,
chronic middle and lower back pain with occasional radiation to the left lower extremity, and a history
of left breast cancer status post lumpectomy and radiation in complete remission. An examination
revealed a normal range of motion in all areas, except for her right shoulder. No sensory abnormalities,
muscle atrophy, or neurological problems were noted. Dr. Brownfield diagnosed Plaintiff with right
shoulder pain with a limited range of motion secondary to a probable tear, CHF, status post breast
cancer, paroxysmal vertigo, and lower back pain with sciatica. She then indicated Plaintiff would have
limited use of her right upper extremity and moderate postural limitations with regard to walking,
stooping, lifting weights, and moderate exertional limitations. Tr. 625-630.
On March 25, 2008, Dr. Jerry Mann completed a physical RFC assessment. Tr. 634-641.
Reviewing only her medical records, he concluded Plaintiff could perform light work, limited by her
inability to push and pull with her right upper extremity. He also found Plaintiff could never climb
ladders/ropes/scaffolds; could frequently climb ramps/stairs, stoop, kneel, crouch, and crawl; could not
reach over head with her right upper extremity; and, should avoid concentrated exposure to hazards such
as machinery and heights. Tr. 634-641. This assessment was affirmed on July 1, 2008, by Dr. Ronald
Crow. Tr. 668.
However, in spite of this evidence, the ALJ concluded Plaintiff could occasionally push and pull
with both of her upper extremities. She also found Plaintiff would be unable to work overheard with her
right upper extremity.

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Using these limitations in the hypothetical questioned posed to the vocational expert, the ALJ
went on to conclude that Plaintiff could perform work as a laundry worker, bench assembler, and cashier
II. See Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998) (holding hypothetical question posed to the
vocational expert based on incorrect RFC cannot constitute substantial evidence to support a conclusion
that Plaintiff not disabled). A review of the descriptions of these positions in the Dictionary of
Occupational Titles reveals that the position of laundry worker requires constant reaching and handling,
and by its definition also requires a great deal of pushing and pulling. See Dictionary of Occupational
Titles § 302.685-010 (requiring worker to remove articles from washer and load into dryer). The
position of bench assembler also requires frequent reaching and handling, as well as the ability to push
and pull. Id. § 706.684-042. Further, the position of cashier II requires frequent reaching and handling.
Id. § 211.462-010. Because the evidence makes clear that Plaintiff was unable to push and pull or reach
overhead with her right upper extremity, we believe remand is necessary to allow the ALJ to reconsider
Plaintiff’s RFC.

Substantial evidence does not support her determination that Plaintiff could

occasionally push and pull with both upper extremities. The requisite evidence is also lacking to support
a finding that Plaintiff could perform work as a laundry worker, bench assembler, and cashier II, given
that the vocational expert’s testimony is in direct contradiction to the Dictionary of Occupational Titles
and no explanation was provided for this variance. See Jones ex rel. Morris v. Barnhart, 315 F.3d 974,
979 (8th Cir. 2003) (holding ALJ cannot rely on expert testimony that conflicts with DOT unless there
is evidence in the record to rebut those classifications).
On remand, the ALJ should also reconsider the limitations imposed by Plaintiff’s degenerative
disk disease. On May 12, 2000, x-rays of her lumbar spine showed transverse process fractures at the
L1 and L2 levels. The doctor prescribed Flexeril, Lodine, Darvocet, and bed rest for one week. Tr. 339344. On at least two more occasions, Plaintiff sought out treatment for back pain. Tr. 468-469, 480-481,
510, 590-593. In April 2005, an x-ray of her lumbar spine revealed mild degenerative disk disease at the

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L3-4 level. Tr. 433. In January 2008, she again complained of lower back pain. Tr. 607-608. And, in
March 2008, when evaluated by Dr. Brownfield, Plaintiff reported chronic mid and lower back pain with
occasional radiation to the left lower extremity. Tr. 625-630. Dr. Brownfield diagnosed Plaintiff with
lower back pain with sciatica and concluded she would have moderate limitations with regard to
stooping. Tr. 625-630. During a hospitalization in April 2008, Plaintiff voiced continued complaints
regarding chronic back pain Tr. 644-655.
After reviewing all of the evidence of record, on remand, we believe the ALJ should also
reconsider Plaintiff’s stooping, bending, crouching, and crawling limitations in light of her degenerative
disk disease.
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 14th day of March 2012.

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

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