McVey v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 14, 2013. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MARK S. MCVEY
MICHAEL J. ASTRUE,1
Commissioner of the Social Security Administration
Plaintiff, Mark S. McVey, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claim for supplemental security income (SSI) under the provisions
of Title XVI of the Social Security Act (Act). 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).
Plaintiff filed his application for SSI on October 28, 2010, alleging an inability to work
since September 7, 2010, due to “Chronic depression, chronic pain, back pain, hypertension.”
(Tr. 158-163, 175, 179). An administrative hearing was held on September 22, 2011, at which
Carolyn Colvin became the Acting Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn Colvin has been substituted for Commissioner Michael
J. Astrue as the defendant in this suit.
Plaintiff appeared with counsel and testified. (Tr. 27-66).
By written decision dated October 26, 2011, the ALJ found that Plaintiff had an
impairment or combination of impairments that were severe - back disorder, hypertension,
substance abuse disorder and seizures. (Tr. 13). However, after reviewing all of the evidence
presented, the ALJ determined that Plaintiff’s impairments did not meet or equal the level of
severity of any impairment listed in the Listing of Impairments found in Appendix I, Subpart P,
Regulation No. 4. (Tr. 13). The ALJ found Plaintiff retained the residual functional capacity
perform light work as defined in 20 CFR 416.967(b) except the claimant
must avoid hazards including no unrestricted heights and moving
machinery. He can frequently reach in all directions, finger, handle,
climb, balance, crawl, kneel, stoop and crouch. The claimant is also
limited to work where interpersonal contact is incidental to the work
performed, the complexity of the tasks is learned and performed by rote
with few variables and little judgment involved. Supervision required is
simple, direct and concrete.
(Tr. 15). With the help of the vocational expert (VE), the ALJ determined that Plaintiff was
unable to perform any past relevant work, but that there were other jobs Plaintiff could perform,
such as cashier, machine tender, and inspector. (Tr. 21).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied the request on January 26, 2012. (Tr. 1-4). Subsequently Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8, 9).
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs, and are repeated here only to the extent necessary.
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 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 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)(D). A Plaintiff must show that his disability, not simply his 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 had engaged in substantial
gainful activity since filing his claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. §416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
in light of his residual functional capacity (RFC). See McCoy v. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
What causes the Court concern is the fact that on August 26, 2011, Plaintiff suffered from
an acute infarct2 in the left posterior basal ganglia,3 and was discharged in stable condition from
the hospital on August 29, 2011. (Tr. 324, 338, 330-331). At the hearing held before the ALJ
on September 22, 2011, Plaintiff testified that his condition had worsened since the incident. (Tr.
36). He testified that when he walked, he would slide rather than pick up his feet, and said that
his equilibrium was completely off. (Tr. 39). He stated that when he extended his left arm, it
was instant pain. (Tr. 39). He further testified that ever since the August 26, 2011 incident, it was
Infarct - An area of necrosis resulting from a sudden insufficiency of arterial or venous blood supply. Stedman’s
Medical Dictionary 968 (28th ed. 2006).
Basal ganglia - Originally, all the large masses of gray matter at the base of the cerebral hemisphere; as currently
used, the striate body (caudate and lentiform nuclei); cell groups functionally associated with the striate body,
such as the subthalamic nucleus and substantia nigra are frequently, but incorrectly, grouped as part of the basal
nuclei/ganglia. Id. at 785.
like he was “carrying a sack of potatoes around on this side here.” (Tr. 51). His former employer
also testified that since the August 26, 2011 incident, he has seen Plaintiff limping. (Tr. 60).
The most recent Physical RFC Assessment in this case was completed on November 19,
2010, by Dr. Julius Petty. (Tr. 239-246). Dr. Petty concluded that Plaintiff would be able to
perform medium work. (Tr. 246). Plaintiff’s most recent mental evaluation was conducted on
January 13, 2011, by Nancy A. Bunting, Ph.D. (Tr. 248-252). Dr. Bunting diagnosed Plaintiff
polysubstance and alcohol dependence in remission by
moderate (with support from friend)
The ALJ found Plaintiff would be able to perform light work with certain limitations,
based upon the record as a whole. However, based upon the recent stroke-like incident that
occurred on August 26, 2011, the Court is of the opinion that a Physical RFC Assessment should
be completed by an examining physician in order to determine the effect the August 2011 strokelike incident had on his physical ability to function in the workplace. The Court also
recommends that the ALJ obtain a Mental RFC Assessment from an examining consultant, to
determine whether the stroke-like incident impacted Plaintiff’s mental ability to function in the
workplace. Once received, the ALJ should then re-evaluate the RFC Assessment in light of the
Accordingly, the Court believes it is necessary to remand this matter to the Defendant in
order for him to obtain more recent Physical and Mental RFC Assessments from examining
Accordingly, the Court concludes that the ALJ’s decision is not supported by substantial
evidence, and therefore, the denial of benefits to Plaintiff should be reversed and this matter
should be remanded to the Commissioner for further consideration pursuant to sentence four of
42 U.S.C. § 405(g).
ORDERED this 14th day of June, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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