Vickers v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable James R. Marschewski on July 10, 2013. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
ROBIN M. VICKERS
Civil No. 3:12-cv-03053-JRM
CAROLYN W. COLVIN, Commissioner of
Social Security Administration1
Factual and Procedural Background
Plaintiff, Robin M. Vickers, brings this action seeking judicial review, pursuant to 42 U.S.C.
§ 405(g), of a decision of the Commissioner of the Social Security Administration (“Commissioner”)
denying her applications for disability insurance benefits (“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social Security Act (“the Act”).
Plaintiff protectively filed her applications on March 20, 2009, alleging an amended disability
onset date of July 15, 2009,2 due to amputation of her left leg below the knee, back pain, neck pain,
hip pain, bipolar disorder, hearing loss, complex regional pain syndrome, and attentiondeficit/hyperactivity disorder (“ADHD”). Tr. 10, 12-13, 170, 185, 244. On the alleged onset date,
Plaintiff was thirty-six years old with a GED and an associate’s degree in respiratory therapy. Tr.
20, 43, 174, 189, 325.
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security. Pursuant
to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner Michael J.
Astrue as the defendant in this suit.
Plaintiff alleged an initial onset date of February 19, 2009. Tr. 10. However, she amended her alleged
onset date to July 15, 2009, at the administrative hearing. Tr. 10, 45.
Plaintiff’s applications were denied at the initial and reconsideration levels. Tr. 64-70, 72-75.
At Plaintiff’s request, an administrative hearing was held on July 21, 2010. Tr. 40-59. Plaintiff was
present at this hearing and represented by counsel. On October 13, 2010, the ALJ rendered an
unfavorable decision, finding Plaintiff not disabled under the Act. Tr. 7-21. Subsequently, the
Appeals Council denied Plaintiff’s Request for Review on February 18, 2012, thus making the ALJ’s
decision the final decision of the Commissioner. Tr. 1-5. Plaintiff now seeks judicial review of that
The Court’s role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). In determining whether
evidence is substantial, the Court considers both evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000)
(citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If, after conducting this review, “it
is possible to draw two inconsistent positions from the evidence and one of those positions
represents the [Secretary’s] findings,” then the decision must be affirmed. Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
To be eligible for disability insurance benefits, a claimant has the burden of establishing that
she is unable to engage in any substantial gainful activity due to a medically determinable physical
or mental impairment that has lasted, or can be expected to last, for no less than twelve months.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A). The
Commissioner applies a five-step sequential evaluation process to all disability claims: (1) whether
the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment that significantly limits her physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a disabling impairment listed in the
regulations; (4) whether the claimant has the RFC to perform her past relevant work; and (5) if the
claimant cannot perform her past work, the burden of production then shifts to the Commissioner
to prove that there are other jobs in the national economy that the claimant can perform given her
age, education, and work experience. Pearsall, 274 F.3d at 1217; 20 C.F.R. § 404.1520(a),
416.920(a). If a claimant fails to meet the criteria at any step in the evaluation, the process ends and
the claimant is deemed not disabled. Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir.
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity at
any point since July 15, 2009, her amended alleged onset date. Tr. 12. At step two, the ALJ found
Plaintiff suffers from the following severe impairments: amputation of left leg below the knee and
mood disorder. Tr. 12-13. At step three, he determined Plaintiff did not have an impairment or
combination of impairments that met or medically equaled a listed impairment. Tr. 13-15.
At step four, the ALJ found Plaintiff had the RFC to perform sedentary work as defined in
20 C.F.R. §§ 404.1567(a) and 416.967(a), in which she could sit for six hours and stand/walk for two
hours during an eight-hour workday, occasionally lift/carry items weighing ten pounds and
frequently lift/carry items weighing less than ten pounds, and occasionally climb, balance, crawl,
kneel, stoop, and crouch, but must avoid hazards, including unprotected heights and moving
machinery. Tr. 15-20. Mentally, the ALJ found Plaintiff could perform work in which interpersonal
contact is incidental to the work performed, the complexity of tasks is learned and performed by rote,
with few variables and little judgment required, and supervisory contact is simple, direct, and
concrete. Tr. 15-20.
The ALJ found Plaintiff had no past relevant work. Tr. 20. At step five, after consulting a
vocational expert, the ALJ found jobs existing in significant numbers in the national economy that
Plaintiff could perform.3 Accordingly, the ALJ determined Plaintiff was not under a disability from
July 15, 2009, the amended alleged onset date, through October 13, 2010, the date of the
administrative decision. Tr. 21.
Plaintiff contends the ALJ erred by: (A) dismissing the opinion of her treating physician and
nurse; and (B) failing to properly consider her physical and mental impairments. See Pl.’s Br. 7-14.
The Commissioner responds that substantial evidence supports the ALJ’s determination. See Def.’s
Br. 4-14. For the following reasons, the court finds that substantial evidence does not support the
At the fourth step of the evaluation, a disability claimant has the burden of establishing her
RFC. Eichelberger, 390 F.3d at 591; Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). A
claimant’s RFC is the most she can do despite her limitations. 20 C.F.R. § 404.1545(a)(1). The ALJ
The ALJ determined Plaintiff could perform the requirements of representative sedentary, unskilled
occupations such as machine tender, of which there are 250 jobs in Arkansas and 18,100 jobs nationally, assembler,
of which there are 400 jobs in Arkansas and 31,043 jobs nationally, and inspector, of which there are 53 jobs in
Arkansas and 4,500 jobs nationally. Tr. 20-21, 251.
determines a claimant’s RFC based on “all relevant evidence, including medical records,
observations of treating physicians and others, and the claimant’s own descriptions of his or her
limitations.” Masterson, 363 F.3d at 737. The Eighth Circuit has stated that “a claimant’s residual
functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Thus,
although the ALJ bears the primary responsibility for determining a claimant’s RFC, there must be
“some medical evidence” to support the ALJ’s determination. Eichelberger, 390 F.3d at 591; Dykes
v. Apfel, 223 F.3d 865, 867 (8th Cir 2000).
The ALJ determined Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R.
§§ 404.1567(a) and 416.967(a), in which she could sit for six hours and walk/stand for two hours
during an eight-hour workday, occasionally lift/carry items weighing ten pounds and frequently
lift/carry items weighing less than ten pounds, and occasionally climb, balance, crawl, kneel, stoop,
and crouch, but must avoid hazards, including unprotected heights and moving machinery. Tr. 15.
The ALJ further limited Plaintiff to unskilled work. Tr. 15.
Plaintiff has a history of left leg stump pain. In 1995, Plaintiff underwent a below-the-knee
amputation of her left leg due to a gunshot wound. Tr. 268. Subsequently, she was fitted for a
prosthesis and worked as a respiratory therapist for several years. Tr. 462-534. In June 2009,
Plaintiff presented to Westside Family Medical Clinic with complaints of severe pain in her left leg
stump. Tr. 338. Timothy Killough, M.D., diagnosed Plaintiff with a neuroma in the stump on her
left leg and treated her with Demerol and Darvocet. Tr. 337, 340. On July 23, 2009, Dr. Killough
completed an Attending Physician’s Statement, in which he opined that Plaintiff could only wear her
prosthetic leg for up to two hours with pain medication. Tr. 340. He also noted that Plaintiff would
need to see a surgeon. Tr. 340.
Plaintiff was referred to Hicham S. Merheb, M.D., for evaluation and treatment. On
September 15, 2009, Dr. Merheb diagnosed Plaintiff with complex regional pain syndrome of the
left lower extremity. Tr. 373. Dr. Merheb treated Plaintiff with epidural steroid injections and
Hydrocodone. Tr. 372, 374. A triple phase bone scan, dated November 23, 2009, revealed an
abnormal residual left fibula. Tr. 398.
Beginning in November 2009, Plaintiff received treatment at Branson Neurology and Pain
Center. Tr. 456. Plaintiff was diagnosed with neuropathy secondary to left below-the-knee
amputation and treated with pain medications including Hydrocodone and Percocet as well as
Gabapentin and Neurontin. Tr. 459. Plaintiff was advised to follow up with an orthopedic
neurosurgeon for evaluation of concerns of neuromas in and around the stump and possible surgical
revision. Tr. 450.
On December 7, 2009, Plaintiff presented to Arkansas Orthopedics and Sports Medicine for
treatment. Tr. 445. Dr. Sedani assessed Plaintiff with a neuroma and recommended rest, Neurontin,
oral anti-inflammatories, and possible prosthesis revision. Tr. 445.
On February 19, 2010, Plaintiff was referred to Richard Nix, M.D., for evaluation and
treatment of her neuroma. Tr. 602. Dr. Nix opined that Plaintiff had neuroma-like pain and agreed
to perform a surgical excision. Tr. 602. Thereafter, on July 13, 2010, Plaintiff underwent surgical
excision of the neuroma as well as a remaining shotgun pellet. Tr. 614. The ALJ rendered his
opinion on October 13, 2010.
After reviewing the evidence of record, the undersigned finds that substantial evidence does
not support the ALJ’s RFC assessment. The ALJ did not afford substantial weight to Dr. Killough’s
Attending Physician’s Statement, noting that his statement was made prior to neuroma removal and
was inconsistent with the medical evidence as a whole. Tr. 19.
A treating physician’s opinion is given controlling weight if it “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence” in a clamant’s record. Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir.
2009); 20 C.F.R. § 404.1527(d)(2). The record must be evaluated as a whole to determine whether
the treating physician’s opinion should be controlling. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.
2005). A treating physician’s evaluation may be disregarded where other medical assessments “are
supported by better or more thorough medical evidence, or where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions.” Id. at 920-21 (quoting
Prosch, 201 F.3d at 1013). In any case, an ALJ must always “give good reasons” for the weight
afforded to the treating physician’s opinion. 20 C.F.R. § 404.1527(d)(2).
While the ALJ is correct that Dr. Killough’s Attending Physician’s Statement was completed
before Plaintiff’s neuroma excision, she did not undergo surgical intervention until July 2010. As
such, Plaintiff’s physical condition with her neuroma encompasses much of the relevant time period
and is therefore material to this case. Moreover, Dr. Killough was the only treating physician to
render an opinion concerning Plaintiff’s physical limitations. The ALJ afforded substantial weight
to the opinions of the agency physicians; however, they did not have the benefit of Plaintiff’s
complete medical record at the time they completed their RFC assessments, nor did they physically
examine Plaintiff. Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (the assessment of a doctor
who evaluates a claimant once or not at all does not usually constitute substantial evidence). For this
reason, the present case is reversed and remanded for further consideration of Plaintiff’s physical
impairments and their functional impact on Plaintiff’s ability to work. On remand, the ALJ should
reconsider the issue of Plaintiff’s RFC, as well as the possibility of a closed period of disability.
Accordingly, the undersigned concludes 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).
IT IS SO ORDERED this 10th day of July 2013.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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