Barkes v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on October 22, 2014. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

CINDY D. BARKES

PLAINTIFF

v.

CIVIL NO. 13-3086

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Cindy D. Barkes, 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 her claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and 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).
I.

Procedural Background:
Plaintiff filed her current applications for DIB and SSI on February 15, 2011,

respectively, alleging an inability to work since February 13, 2007, due to fibromyalgia, high
blood pressure, and an anxiety disorder. (Tr. 142, 150, 197). An administrative video hearing
was held on May 8, 2012, at which Plaintiff appeared with counsel and testified. (Tr. 32-74).
By written decision dated August 23, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 16).

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Specifically, the ALJ found Plaintiff had the following severe impairments: depression, anxiety,
lumbar spine pain, and fibromyalgia. 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. 17). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the
following limitations: the claimant can sit, stand, and/or walk for 6 hour (sic) out
of an 8-hour workday, with normal breaks; she can push and pull pursuant to the
lift and carry limitations at the light level of exertion; she can climb stairs and
ramps occasionally, but cannot climb ladders, ropes, and scaffolds; she can
occasionally balance, stoop, crouch, and crawl; she can perform work where
interpersonal contact is incidental to work performed, the complexity of tasks is
learned and performed by rote, with few variables and little judgment, and the
supervision required is simple, direct, and concrete.
(Tr. 19). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a housekeeper, an assembly worker, and a hand packager. (Tr. 25).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence submitted by Plaintiff, denied that request on August 28,
2013. (Tr. 1-7). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the
undersigned pursuant to the consent of the parties. (Doc. 7). Both parties have filed appeal
briefs, and the case is now ready for decision. (Docs. 13, 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.
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. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.

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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 her disability by establishing a physical or mental disability that has lasted at least
one year and that prevents her 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 her disability, not simply her impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require her 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 her claim; (2) whether the claimant has a severe physical and/or

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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 her age, education, and experience. See 20 C.F.R. §§ 404.1520, 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 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.
III.

Discussion:
When the Appeals Council has considered material new evidence and nonetheless

declined review, the ALJ's decision becomes the final action of the Commissioner. The Court
then has no jurisdiction to review the Appeals Council's action because it is a nonfinal agency
action. See Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992). At this point, the Court’s
task is only to decide whether the ALJ's decision is supported by substantial evidence in the
record as a whole, including the new evidence made part of the record by the Appeals Council
that was not before the ALJ. As the United States Court of Appeals for the Eighth Circuit has
noted, "this [is] a peculiar task for a reviewing court." Riley v. Shalala, 18 F.3d 619, 622 (8th
Cir.1994). However, once it is clear that the Appeals Council considered the new evidence, then
the Court must factor in the evidence and determine whether the ALJ's decision is still supported
by substantial evidence. This requires the Court to speculate on how the ALJ would have
weighed the newly submitted evidence had it been available at the initial hearing. Flynn v.
Chater, 107 F.3d 617, 621 (8th Cir.1997). Thus, the Court has endeavored to perform this
function with respect to the newly submitted evidence.

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The new evidence submitted to the Appeals Council consists of a letter dated November
15, 2012, written by Dr. Paul Wilbur of the Mountain Home Christian Clinic. (Tr. 627). Dr.
Wilbur wrote that Plaintiff had been seen occasionally in the clinic since September of 2008, and
that when Plaintiff was last seen she was “walking with a cane and complaining of not being
able to do anything secondary to hurting all over.” Dr. Wilbur noted that upon examination,
every place he touched Plaintiff caused her severe pain. Dr. Wilbur also noted that Plaintiff was
“dependent/addicted” to Xanax and pain medications. Had the ALJ had this medical evidence
before him when making his decision on this case, the outcome may very well have been
different. Accordingly, the Court believes that remand is necessary to allow the ALJ to consider
this new and material evidence.
The Court would also note that the most recent RFC assessment of record was completed
prior to Plaintiff’s back surgery in March of 2012. The record revealed that on March 21, 2012,
Plaintiff’s surgeon recommended that Plaintiff not lift over 15 pounds, and that she refrain from
bending, twisting or stretching her low back until further notice. (Tr. 586). On remand, the ALJ
is directed to address interrogatories to an examining physician asking that physician to review
Plaintiff's medical records including the records regarding her back surgery; to complete a RFC
assessment regarding Plaintiff's capabilities during the time period in question; and to give the
objective basis for his or her opinion so that an informed decision can be made regarding
Plaintiff's ability to perform basic work activities on a sustained basis for the time period in
question.

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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 RFC assessment
and supported by the evidence.
The ALJ may also want to further address Plaintiff’s receipt of unemployment benefits
and Plaintiff’s work during the relevant time period as this may impact Plaintiff’s potential onset
date.
IV.

Conclusion:
Accordingly, the Court concludes that the ALJ’s decision is not supported by substantial

evidence, and therefore, the denial of benefits to the 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).
DATED this 22nd day of October, 2014.

/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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