Smithey v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on May 23, 2014. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MITCHELL A. SMITHEY
Civil No. 13-3017
CAROLYN W. COLVIN1, Commissioner
Social Security Administration
Plaintiff, Mitchell Smithey, 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, 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).
The Plaintiff filed his applications for DIB and SSI on May 19, 2010, alleging an onset
date of March 1, 2009, due to plantar fasciitis, carpal tunnel, neck pain, anxiety, and bipolar
disorder. Tr. 165. His claims were denied both initially and upon reconsideration. An
administrative hearing was then held on September 22, 2011. Tr. 23-64. Plaintiff was both
present and represented at that hearing.
Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. 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.
A the time of the administrative hearing, Plaintiff was 49 years old and possessed the
equivalent of a high school education. Tr. 26, 166. He had past relevant work (“PRW”)
experience in retail management, as a soldier in the Army, and as a fast food cook/waiter. Tr.
On February 9, 2012, the Administrative Law Judge (“ALJ”) concluded that, although
severe, Plaintiff’s disorder of the back, generalized anxiety disorder, personality disorder, and
mood disorder did not meet or equal any Appendix 1 listing. Tr. 10-12. The ALJ determined
that Plaintiff maintained the residual functional capacity (“RFC”) to perform light work
involving only frequent handling, fingering, climbing, balancing, crawling, kneeling, stooping,
and crouching. Tr. 12. Further, the ALJ concluded Plaintiff could understand, remember, and
carry out simple, routine, repetitive tasks, respond to usual work situations and ordinary work
changes, and have incidental contact with supervisors and co-workers. However, he found that
Plaintiff could not have any contact with the general public. Tr. 12. With the assistance of a
vocational expert, the ALJ then decided Plaintiff could perform work as a production line
assembler and plastic molding machine tenderer. Tr. 17-18.
The Appeals Council denied Plaintiff’s request for review on November 30, 2012. Tr.
1-3. 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. 12, 13.
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs and the ALJ’s opinion, and are repeated here only to the extent
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 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.
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 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).
Of particular concern of the undersigned is the ALJ’s RFC determination. 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). Adequate
medical evidence must therefore exist that addresses the claimant’s ability to function in the
workplace. See Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003). The Court has held,
however, that the ALJ is not at liberty to make medical judgments regarding the ability or
disability of a claimant to engage in gainful activity where such inference is not warranted by
clinical findings. McGhee v. Harris, 683 F. 2d 256 (8th Cir. 1982).
In the present case, the record makes clear that Plaintiff suffers from generalized anxiety
disorder, personality disorder, and mood disorder. The record is replete with references to his
mental symptoms, including suicidal thoughts, suicide attempts, panic attacks, and the inability
to be around others. In October 2011, Dr. Nancy Bunting completed a mental status and
evaluation of adaptive functioning assessment. Tr. 374-380. She diagnosed Plaintiff with
generalized anxiety disorder, alcohol and substance abuse in remission by report, personality
disorder2 not otherwise specified with a global assessment of functioning score of 50-60. She
indicated that personality disorder was a rule out diagnosis given due to his presentation with
oppositional defiant characteristics. Dr. Bunting also indicated that Plaintiff had “no ability to
deal with co-workers and supervisors, limited ability to deal with the public, and little ability to
cope with the typical mental/cognitive demands of basic work-like tasks. In spite of this, the
ALJ concluded that Plaintiff could have incidental contact with supervisors and co-workers and
no contact with the general public. He asserted that Plaintiff’s ability to care for his two
preschool age children evidences his ability to deal with others. However, Dr. Bunting was also
aware of his childcare activities, yet still concluded he could not deal with co-workers and
supervisors. And, given his contentious behavior during his evaluation with Dr. Bunting coupled
with his rule out diagnosis of personality disorder, we find that remand is necessary to allow the
ALJ to reconsider Plaintiff’s RFC.
A personality disorder is a mental disorder characterized by a rigid and unhealthy pattern of thinking,
functioning and behaving. Mayo Foundation for Medical Education and Research, Personality Disorder,
-disorders/basics/definition/con-20030111 (last accessed May 23, 2014). Individual suffering from a
personality disorder have trouble perceiving and relating to situations and to people. Id.
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 23rd day of May 2014.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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