Fowler v. Social Security Administration Commissioner
Filing
18
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on July 28, 2014. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
DELORES D. FOWLER
PLAINTIFF
v.
Civil No. 13-3032
CAROLYN W. COLVIN,1 Commissioner
Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Plaintiff, Delores D. Fowler, 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 her claim
for disabled widow’s insurance benefits (“DWB”) under Title II of the Social Security Act (hereinafter
“the Act”), 42 U.S.C. §§ 423(d)(1)(A) for the period of March 1, 2006 to August 5, 2009. 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 initially applied for DWB on January 10, 2007. (Tr. 35.) Plaintiff alleged an onset date
of March 1, 2006 due to depression, anxiety, back pain, neck pain, right leg pain, and heart problems. (Tr.
104.) Plaintiff’s applications were denied initially and on reconsideration. Plaintiff requested an
administrative hearing, which was held on December 18, 2008 in front of Administrative Law Judge
(“ALJ”) Edward Starr. Plaintiff was present to testify and was represented by a non-attorney Randall
Kilgore, her church pastor. (Tr. 828.) The ALJ also heard testimony from Velma Ricketts, a witness for
Plaintiff. A Vocational Expert (“VE”) was not present. The ALJ sent an interrogatory to VE Sarah Moore
on April 14, 2009. (Tr. 160.)
1
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.
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At the time of the administrative hearing, Plaintiff was 55 years old, and possessed a GED
obtained after two years of high school, special education track. (Tr. 108.)The ALJ found that Plaintiff had
no past relevant work experience (“PRW”). (Tr. 43.)
On August 10, 2009, the ALJ found that Plaintiff’s prescribed period began on November 30,
2004, which was the date of her husband’s death. She therefore needed to establish that her disability
began on or before November 30, 2011 in order to be entitled to disabled widow’s benefits. (Tr. 35.)
The ALJ concluded that Plaintiff suffered from the following severe impairments: osteoarthritis,
rheumatoid arthritis, and mood disorders. (Tr. 37.) The ALJ found that Plaintiff maintained the residual
functional capacity to
occasionally lift/carry 50 pounds and frequently lift/carry 25 pounds. She can sit for six
hours and stand/walk for six hours in an eight hour workday. She has moderate
restrictions in maintaining social functioning and persistence, pace, and concentration is
moderately limited in the ability to understand, remember, and carry out detailed
instructions, response appropriately with supervisors, co-workers, and the public. In
addition, she can do work in which interpersonal contact is incidental to the work
performed, complexity of tasks is learned and performed by rote with few variables and
little judgment required, and supervision is simple, direct, and concrete.
(Tr. 39.) With the assistance of the VE, the ALJ determined that the Plaintiff could perform such
representative occupations
as
dishwasher/kitchen
helper,
housekeeper/cleaner,
and poultry
production/eviscerator and boner. (Tr. 44.)
Plaintiff requested a review by the Appeals Council on August 11, 2009. (Tr. 318.) The Appeals
Council declined review on January 21, 2010. (Tr. 1.)
On May 27, 2011, the Court remanded the case for further consideration pursuant to sentence four
of 42. U.S.C. § 405(g). Specifically, the Court stated:
Without a recent Physical RFC Assessment, the Court fails to see how the ALJ could adequately assess
Plaintiff’s RFC in light of her diagnosis of rheumatoid arthritis. The Court therefore finds it appropriate
to remand this matter to the ALJ in ode r for him to obtain a Physical Assessment from Dr. Kashi Mufti,
or another examining physical. With this evidence, the ALJ should then re-evaluate Plaintiff’s RFC, and
specifically list in a hypothetical to a vocational expert any limitations that are indicated in the new
information and supported by the evidence.
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(Tr. 313.)
Based on the Court’s remand order, the Appeals Council (“AC”) remanded the case back to the
ALJ for further administrative proceedings. (Tr. 315, 317.) The AC also noted that the Plaintiff was found
disabled as of February 26, 2010, based on a subsequent application. (Tr. 317.) Thus, the remand was to
examine the onset of disability prior to February 26, 2010, in accordance with SSR 83-20. (Tr. 317.) The
AC stated that the ALJ “may wish to obtain the testimony of a medical expert to address the issue of onset
prior to February 2010. (Tr. 317.) The AC also stated that the ALJ “will comply with the court order and
take the actions set forth therein.”) (Tr. 317.) In using the date of February 26, 2010, the AC appears to
have incorrectly used the date Plaintiff became eligible to receive benefits (February 2010) rather than the
date that she was actually found to be disabled. (August 6, 2009). (Tr. 320.) Thus, it is assumed that the
AC Order should be read substituting August 6, 2009 rather than February 26, 2010.
A second hearing was held by video conference before ALJ Starr on August 23, 2012. (Tr. 267.)
Plaintiff was present to testify and was represented by counsel. Velma Ricketts was again present as a
witness for Plaintiff. Plaintiff was 58 years old at the time of this hearing. (Tr. 268.) No VE was present
to testify, but VE Sara Moore completed an interrogatory on October 2, 2012. (Tr. 515.)
On November 8, 2012, ALJ Starr issued a written opinion, noting that the period at issue in his
decision was March 1, 2006 to August 5, 2009, as Plaintiff had been found disabled as of August 6, 2009
in a subsequent application. (Tr. 247.) The Notice of Award states that Plaintiff became disabled as of
August 6, 2009 and was therefore eligible for benefits starting in February of 2010. (Tr. 320.)
In his 2012 opinion, ALJ Starr found that the Plaintiff suffered the following severe impairments:
osteoarthritis and mood disorder. (Tr. 250.) He found that, during the relevant period, she retained the
residual functional capacity to
understand, remember, and carry out simple, routine, and repetitive tasks; respond to
usual work situations and routine work changes; respond to supervision that is simple,
direct, and concrete; and interact with supervisors, co-workers, and the public. The
claimant could occasionally lift/carry 20 pounds and frequently 10. She could sit for six
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hours in an 8-hour workday, stand/walk for 6 hours in an 8-hour workday, and frequently
finger and handle.
(Tr. 251.) In this opinion, the ALJ found that the Plaintiff had PRW of “cleaner, housekeeping.” (Tr. 258.)
With the assistance of the VE through interrogatory, he found that Plaintiff could perform her PRW as t
is commonly performed. (Tr. 258.)
Plaintiff filed her second appeal on November 20, 2012. (Tr. 242.) There does not appear to be
any record of an AC response to this request in the certified transcript, therefore the AC did not assume
jurisdiction and the ALJ’s decision is the final Agency decision in the case. See 20 C.F.R. § 404.984.
Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 15, 17. )
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 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 the court finds it possible “to draw two inconsistent
positions from the evidence, and one of those positions represents the Secretary’s findings, the court 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,
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1217 (8th Cir. 2001); see 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. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
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 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 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
Plaintiff raises three issues on appeal: 1) the ALJ did not comply with the mandates of the May
2011 court remand; 2) the ALJ erred in dismissing the Arthritis RFC by treating Rheumatologist Dr.
Rubio; 3) the ALJ failed to develop the record. (Pl.’s Br. 8-12.) This Court agrees that the ALJ made a
completely inadequate effort to follow the mandate of the previous court remand.
Section 405(g) expressly grants federal courts the authority of judicial review for final Social
Security decisions. Under 405(g) a court may affirm, modify or reverse an Agency decision, with or
without remand. When a remand is issued, the Agency is not free to ignore the mandate of the remanding
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court.2 Due to the detail and complexity often found in Social Security remands, “[d]eviation from the
court’s remand order in the subsequent administrative proceedings is itself legal error subject to reversal
on further judicial review.” Sullivan v. Hudson, 490 U.S. 877, 885-86 (1989); see also United Gas
Improvement Co. v. Continental Oil Co. 381 U.S. 392, 406 (1965); F.C.C. v. Pottsville Broadcasting Co.
309 U.S. 134, 145 (1940) (administrative agency is bound to act upon corrections of law from reviewing
court); Brachtel v. Apfel, 132 F.3d 417, 419-20 (8th. Cir. 1997)(law of case doctrine applies to both courts
and administrative agencies on remand); United States. v. Bartsch, 69 F.3d 864 (8th Cir. 1995) (law of
case doctrine often used interchangeably with closely related mandate rule for the principle that a lower
tribunal must scrupulously follow the mandate of the reviewing court on remand).
In order to correctly fulfill the mandate of a reviewing court, the Eighth Circuit has long held that
an inferior court is bound to follow both the letter and the spirit of a remand. These are to be construed in
light of the entire appellate opinion. Thornton v. Carter, 109 F.2d 316, 320 (8th Cir. 1940); see also
Poletti v. C.I.R., 351 F.2d 345, 347-48 (8th Cir. 1965)(tax court was not permitted to deviate from either
letter or spirit of court remand).
In this case, the remanding court was concerned that the ALJ did not have a recent Physical RFC
from an examining or treating physician which took her rheumatoid arthritis diagnosis into account. As
Plaintiff was found to be disabled as of August 6, 2009 on a second application, the question on this
appeal has subsequently been narrowed to examine whether the ALJ had an adequate Physical RFC
assessment to determine if Plaintiff was disabled for the period of March 1, 2006 to August 5, 2009.
2
This Court notes for reference that the Seventh and Ninth Circuits have both held that the obduracy of
an ALJ in failing to follow a remand may be considered as a factor supporting the award of benefits if the record
permits a finding that the claimant is, in fact, disabled. Wilder v. Apfel, 153 F.3d 799, 801, 804 (7th Cir.
1998)(because the ALJ’s obduracy on remand left the case “exactly where it was last time: with no reasoned
basis for the denial of benefits,” the court held that it was time to “bring the charade to an end” and award
benefits); Strauss v. Commissioner of the Social Sec. Admin., 653 F.3d 1135, 1138 (9th Cir. 2011) ( court may
not move directly from finding that ALJ did not comply with remand to an award of benefits “without the
intermediate step of analyzing whether, in fact, claimant is disabled”). This Court also notes that the Second
Circuit has held that a court may impose time-limits for the agency to process a particular remand. Butts v.
Barnhart, 416 F.3d 101, 103 (2d Cir. 2004).
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A review of the record reveals that, despite the clear and simple mandate of the remanding court,
the ALJ has yet to obtain a recent Physical RFC from Dr. Kashif Mufti, or another examining physician
which considers Plaintiff’s rheumatoid arthritis (“RA”) for the relevant period.
The record indicates that the Agency mailed a request to Dr. Mufti at UAMS, which was returned
undelivered. (Tr. 625.) This apparently constituted the ALJ’s entire effort to comply with the remand.
There is no indication that either the ALJ or Plaintiff’s attorney contacted UAMS to either find Dr. Mufti’s
new location, or to have another UAMS rheumatologist examine Plaintiff using Dr. Mufti’s records. Nor
is there any indication that the Agency ordered a consultative examination with any rheumatologist who
could evaluate Plaintiff’s current condition and estimate possible prior RA onset dates as recommended
by the AC pursuant to SSR 83-20.
Plaintiff submitted a Physical RFC Assessment from treating rheumatologist Dr. Ronald Rubio
to the AC in 2010 as part of Plaintiff’s second application. (Tr. 601.) Dr. Rubio had seen Plaintiff three
times at that point, starting in February 2010. Unfortunately for this appeal, it does not appear that the form
given to him by Plaintiff’s attorney addressed the specific time frame in question. Rather, it addressed
current limitations and asked the earliest date to which the current limitations might apply. (Tr. 602.) Dr.
Rubio opined that the current limitations would only apply starting December 2009. (Tr. 603.)
Understandably, the ALJ gave this RFC “little weight” in the evaluation of onset prior to August 6, 2009.
(Tr. 257.)
A Physical RFC by non-examining Agency physician Dr. Jerrye Woods, M.D., was completed on
April 4, 2010 as part of the second application. (Tr. 610- 17.) This is the most recent Physical RFC in the
combined record. It is not from an examining physician. It does not address onset date.
Thus, just over three years past the remand order on Plaintiff’s first appeal, and seven years after
Plaintiff first filed for benefits, there is still no recent Physical RFC Assessment by a treating or examining
physician which addresses Plaintiff’s RA onset date for the relevant appeal period. Thus, the ALJ has yet
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to follow either the letter or the spirit of the first remand. Therefore, this Court must order a second
remand.
On remand, the ALJ is once again directed to obtain a Physical RFC assessment from an
examining or treating rheumatologist. The rheumatologist should specifically evaluate the possible
progression of Plaintiff’s RA and provide an estimated onset date. Only then will the ALJ have a
“legitimate basis” upon which the ALJ can make a reasonable inference about Plaintiff’s onset date
pursuant to SSR 83-20. Once this information is received, the ALJ is directed to re-evaluate Plaintiff’s RFC
and then address that information to a VE.
The Agency is urged to consider assigning this second remand to a different ALJ.
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 28th day of July 2014.
J. Marschewski
/s/
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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