McClaskey v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on March 7, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
TODD M. MCCLASKEY

PLAINTIFF

v.

Civil No. 11-3138

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Todd McClaskey, 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 claim for a period of disability and disability insurance benefits (“DIB”) under Title II
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 DIB on July 13, 2010, alleging an onset date of September

17, 2009, due to a crushed pelvis and hips, a bulging disk in his lower back, depression, and high
blood pressure. Tr. 120-125, 164, 176-177, 201, 204, 246-248. His claims were denied both
initially and upon reconsideration. Tr.74, 77, 120. An administrative hearing was then held on May
24, 2011. Tr. 27-68, 80. Plaintiff was present and represented by counsel.
At this time, Plaintiff was 42 years of age and possessed a high school education and training
as a journeyman’s electrical apprentice. Tr. 32-33, 168, 242. He had past relevant work (“PRW”)
experience as an electrician, boat builder, and refuse worker. Tr. 33-37, 168-175, 243.
On October 17, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, Plaintiff’s right inferior pubic rami fracture, right anterior acetabular wall fracture, bilateral

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greater trochanteric fracture, DDD of the lumbar spine, obesity, and adjustment disorder with
depressed mood did not meet or equal any Appendix 1 listing. Tr. 12-14. The ALJ determined that
Plaintiff maintained the residual functional capacity (“RFC”) to perform sedentary work that does
not require climbing, kneeling, crouching, or crawling and only occasional balancing, stooping, and
operation of foot controls. The ALJ found Plaintiff was further limited as he must use an assistive
device to ambulate and could only perform work where the interpersonal contact is routine but
superficial, the complexity of the tasks is learned by experience with several variables and limited
judgment, and the supervision required is little for routine tasks bu detailed for non-routine tasks.
Tr. 14-.20 With the assistance of a vocational expert, the ALJ then found that plaintiff could
perform work as an interviewer and a charge account clerk. Tr. 21.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on November 14, 2011. Tr. 1-4. 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. 6, 8.
The Court has reviewed the entire record in this case, including the transcript of the
administrative hearing, Plaintiff’s medical records, the ALJ’s opinion, and the appeal briefs filed by
the parties. The complete set of facts and arguments are presented in the parties’ briefs and are
repeated here only to the extent necessary.
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. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it
adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining the
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record to find substantial evidence in support of the ALJ’s decision; we also consider evidence in
the record that fairly detracts from that decision.” Id. As long as there is substantial evidence in the
record to support the Commissioner’s decision, the court may not reverse the decision simply
because substantial evidence exists in the record to support a contrary outcome, or because the court
would have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001).
If we find it possible “to draw two inconsistent positions from the evidence, and one of those
positions represents the Secretary’s findings, we must affirm the decision of the Secretary.” Cox, 495
F.3d at 617 (internal quotation and alteration omitted).
It is well-established that 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. § § 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 disability, not simply his impairment, has lasted for at least twelve consecutive months.
A.

The Evaluation Process:

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 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. 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 failure to clarify the RFC assessment

submitted by Dr. R. D. Simmons. 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). This duty includes a duty to order consultative
examinations, if necessary, as well as a duty to recontact treating physicians to clarify the record.
The Commissioner's regulations explain that contacting a treating physician is necessary when the
doctor’s records are “inadequate for us to determine whether [the claimant is] disabled ‘such as
‘when the report from your medical source contains a conflict or ambiguity that must be resolved,
the report does not contain all the necessary information, or does not appear to be based on
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §§404.1512(e),
416.912(e).
In the present case, Dr. Simmons completed a lumbar spine RFC assessment questionnaire
on May 25, 2011.1 Tr. 463-466. Although he indicated that he had been treating Plaintiff since
October 2002, the record contains no treatment notes from Dr. Simmons, aside from his assessment.
And, while he indicated that Plaintiff was unable to return to work, he failed to answer a number of
1

Dr. Simons indicated that Plaintiff’s ability to bend was limited forty degrees, he exhibited an abnormal gait, and
he had a positive straight leg raise test on the right side. He then opined that Plaintiff could sit for 30 minutes at a time for a
total of less than 2 hours per 8-hour workday, and could stand for 15 minutes at a time for less than two hours total per day.
Although he did leave numerous portions of this form blank, he indicated that Plaintiff could not lift and/or carry, twist,
stoop, crouch/squat, or climb. However, he also indicated that Plaintiff was unable to work. Tr. 464-465.

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the questions posed to him regarding Plaintiff’s exertional and non-exertional limitations. Dr.
Simmons also failed to provide a basis for his opinion and did not indicate when he last treated
Plaintiff. The ALJ dismissed Dr. Simmons’ assessment, citing the aforementioned ambiguities.
However, given the nature of Plaintiff’s impairments2 and the fact that Dr. Simmons was the only
treating physician to complete an RFC assessment, we believe that the ALJ should have contacted
him to resolve these ambiguities prior to rendering a decision in this case. Therefore, remand is now
necessary to allow the ALJ to do so. On remand, the ALJ should also inquire as to the existence of
treatment records from Dr. Simmons dated during the relevant time period that might shed further
light on Plaintiff’s condition.
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 7th day of March 2013.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

2

On September 17, 2009, while working as a trash slinger, Plaintiff was pinned between the garbage truck and a
tree. Tr. 268-289, 295-327, 338-346, 350-354, 360-362. He suffered a fractured pelvis and bilateral hip fractures. He
underwent many months of physical therapy, but continued to exhibit weakness and extremely poor hip extension with hip
abduction. Tr. 331, 370-375, 380-383, 387-397, 400-402. Plaintiff’s condition also necessitated the use of a cane for
assistance with ambulation. An MRI of his lumbar spine had also revealed multiple levels of disk disease, probably most
pronounced at the L4 -L5 level eccentric to the right where it effaces some of the fat around the exiting nerve root , and
hard fat around the thecal sac at the L4-L5 and L5-S1 levels, compressing the thecal sac. Tr. 290-291.

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