Switzer v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 28, 2014. (adw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Timothy Switzer, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the final decision of the Commissioner of the Social Security Administration
(Commissioner) ceasing his entitlement to disability benefits and supplemental security income
benefits as of December 1, 2009.
Plaintiff was initially found to be disabled as of December 23, 1999, and his disability
was allowed to continue by decision dated February 5, 2004, which is known as the “comparison
point decision,” or CPD. (Tr. 12, 86-94, 299-307). At the time of the CPD, Plaintiff was found
to have the following medically determinable impairments: depression, chronic pain, anxiety
disorder, borderline intellectual functioning and passive dependent personality traits. (Tr. 13).
On December 30, 2009, the Agency determined that medical improvement had occurred as of
the CPD and ceased benefits, starting December 1, 2009. (Tr. 99-101). Plaintiff requested
reconsideration of the cessation of benefits, and the Agency affirmed its denial. (Tr. 97-98, 128-
Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
129). On June 21, 2011, the ALJ held a cessation hearing at which Plaintiff, with counsel, friends
of Plaintiff, and an impartial vocational expert (VE) appeared and testified. (Tr. 32-71). On
December 22, 2011, the ALJ issued a decision finding that as of December 1, 2009, Plaintiff had
the following medically determinable impairments- degenerative disc disease and osteoarthritis
of the cervical and lumbar spine, osteoarthritis of the bilateral hips, fibromyalgia syndrome,
osteoarthritis and tendinosis of the shoulders, chronic pain, atrial fibrillation, congestive
cardiomyopathy, coronary artery disease, hypertension, depressive disorder, generalized anxiety
disorder, panic disorder with agoraphobia, and borderline intellectual functioning and personality
disorder. (Tr. 13). However, the ALJ found that since December 1, 2009, the Plaintiff did not
have an impairment or combination of impairments which met or medically equaled the severity
of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1525 and
404.1526). (Tr. 13). The ALJ concluded that medical improvement occurred as of December 1,
2009, which was related to the ability to work, and found that based on the impairments present
as of December 1, 2009, Plaintiff had the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) except the
claimant can only occasionally climb, balance, stoop, kneel, crouch and
crawl. The claimant cannot do overhead work or reaching and must avoid
concentrated exposure to hazards, i.e. unprotected heights and
unprotected moving machinery. The claimant can perform work where
interpersonal contact is incidental to the work performed, the complexity
of tasks is learned and performed by rote, with few variables and use of
little judgment, and the supervision required is simple, direct and
concrete. The claimant is unable to have contact with the general public.
(Tr. 16). With the help of a VE, the ALJ determined Plaintiff was unable to perform past
relevant work, but that there were other jobs Plaintiff would be able to perform, such as an
assembler, e.g. final bench assembler-optical, and machine tender-production, e.g. a zipper
machine operator. (Tr. 24-25).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on January 24, 2013. (Tr. 1-4). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 8). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 14, 15).
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.
The Court is troubled by the fact that there is no Physical RFC assessment in the record
subsequent to the time Plaintiff suffered from a heart attack and other heart issues. The most
recent Physical RFC Assessment in the record is dated September 18, 2009. (Tr. 415-422).
Subsequent thereto, approximately one week prior to the hearing, on June 13, 2011, Plaintiff
suffered a heart attack and had a stent placed while being treated at Baxter Regional Medical
Center. (Tr. 705-711). On June 27, 2011, Plaintiff again presented to the hospital, was diagnosed
with vertigo, and on June 29, 2011, had a left heart catheterization performed. (Tr. 895). On
September 12, 2011, Plaintiff was examined by Dr. Ted Honghiran, who reported that Plaintiff’s
main problem “now is his heart - he has had two heart attacks and still feels weak, because he
just came out of the hospital.” (Tr. 898).
The Court finds that under the circumstances of this case, with Plaintiff recently suffering
with various heart conditions, it is appropriate to remand this matter to the ALJ in order for him
have Plaintiff examined by a cardiologist, and for the cardiologist to prepare a Physical RFC
Assessment. Once received, the ALJ should then re-evaluate his RFC assessment in light of the
Accordingly, the Court concludes that ALJ’s decision is not supported by substantial
evidence, and therefore, the cessation 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 28th day of February, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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