Cluer v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 19, 2015. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JOHN A. CLUER
Civil No. 3:13-cv-3094
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, John Cluer, 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 his claim for a period of disability and supplemental security income (“SSI”) under the
provisions of Title XVI of the Social Security Act (“Act”). The Parties have consented to the
jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including
conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment
proceedings. (ECF No. 7).1 Pursuant to this authority, the Court issues this memorandum opinion
and orders the entry of a final judgment in this matter.
Plaintiff protectively filed his application for SSI on February 15, 2011, alleging an onset date
of February 15, 2010, due to “low blood pressure; heart problems; extreme pain in neck and both
shoulders; dizziness; and arthritis.” (Tr. 80, 202, 216). Plaintiff’s application was denied initially
The docket numbers for this case are referenced by the designation “ECF No. __.” The transcript
pages for this case are referenced by the designation “Tr.”
and on reconsideration. An administrative hearing was held on December 19, 2012, at which
Plaintiff appeared with counsel and testified. (Tr. 97-129). A vocational expert (“VE”) was also
present and testified. (Tr. 104-105).
On April 5, 2013, the Administrative Law Judge (“ALJ”) entered an unfavorable decision.
(Tr. 80-89). In this decision, the ALJ determined Plaintiff had the following severe impairments:
“residual pain from left shoulder injury, neck pain, and alcoholism.” (Tr. 82, Finding 3). After
reviewing all of the evidence presented, however, the ALJ determined Plaintiff’s impairments did
not meet or equal the level of severity of any impairment listing. (Tr. 82-84, Finding 3).
The ALJ next evaluated Plaintiff’s subjective complaints and determined his RFC. (Tr. 8488). The ALJ first evaluated Plaintiff’s subjective complaints and found he was not entirely credible.
(Tr. 80-85). The ALJ then found Plaintiff retained the residual functional capacity (“RFC”) to
perform medium work as defined in 20 C.F.R. 416.967(c). (T. 84, Finding 4). The ALJ also
determined Plaintiff could perform his past relevant work (“PRW”) as a carpenter. (Tr. 88-89,
Finding 5). The ALJ then concluded Plaintiff was not disabled. (Tr. 89, Finding 6).
On May 14, 2013, Plaintiff requested the Appeals Council review the ALJ’s unfavorable
decision, which denied the request on August 19, 2012. (Tr. 1-6). On October 15, 2013, Plaintiff
filed the present appeal. (ECF No. 1). The Parties consented to the jurisdiction of this Court on
March 11, 2014. (ECF No. 5). Both Parties have filed appeal briefs, and the case is ready for
decision. (ECF Nos. 10, 11).
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 a reasonable mind would
find it adequate to support the Commissioner’s decision. “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.” Cox v. Astrue, 495 F.3d 614, 617 (8th Cir.
2007). 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 to support the Commissioner’s decision, the Court may not reverse it 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). 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).
To determine whether a claimant suffers from a disability, the Commissioner uses a five-step
sequential evaluation. She determines: (1) whether the claimant is presently engaged in a substantial
gainful activity; (2) whether the claimant has a severe impairment that significantly limits the
claimant’s physical or mental ability to perform basic work activities; (3) whether the claimant has
an impairment that meets or equals a presumptively disabling impairment listed in the regulations
(if so, the claimant is disabled without regard to age, education, and work experience); (4) whether
the claimant has the RFC to perform his PRW; and (5) if the claimant cannot perform the past work,
the burden shifts to the Commissioner to prove there are other jobs in the national economy the
claimant can perform. 20 C.F.R. §§ 404.1520(a)-(f); Cox, 160 F.3d at 1206. The fact finder only
considers Plaintiff’s age, education, and work experience in light of his RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920.
Plaintiff argues on appeal the ALJ failed to (1) adequately develop the record, (2) determine
Plaintiff had a severe mental impairment at Step Two, and (3) evaluate whether Plaintiff’s alcohol
abuse was a contributing factor in the disability determination. (ECF No. 12 at 13-19).
The record shows Plaintiff suffered from a combination of syncope episodes,
hyperthyroidism, alcohol abuse, anxiety, depression, back problems, and shoulder problems. (Tr.
272-282436-437, 457, 541-543, 558-559, 577-579). The ALJ determined Plaintiff’s severe
impairments were shoulder pain, neck pain, and alcoholism, and found Plaintiff could perform
medium work. (Tr. 82-84, Findings 3 and 4).
The ALJ did not adequately develop a record of Plaintiff’s neck and shoulder problems,
instead, the ALJ based his decision on the State non-examining consultants’s opinions, without fully
addressing the limitations they recommended. The ALJ then concluded Plaintiff could perform his
PRW as a carpenter, which is at odds with State consultants’s opinion Plaintiff should not work with
The record shows Plaintiff saw Dr. Thomas Embry, on March 14, 2011, for a shoulder and
neck examination. (Tr. 574-576). Dr. Embry noted Plaintiff had a decreased range of motion in his
shoulders, especially on external rotation, but was able to extend his arms over his head. (Tr. 574).
X-rays of Plaintiff’s spine and shoulder revealed a chronic right shoulder injury characterized by Dr.
Greg Baden, who reviewed the films, as an “acromioclavicular joint separation appear[ing] to be
chronic with overlap,” and moderate degenerative disc disease. (Tr. 574-576, 581-582). At a
follow-up visit, Dr. Embry confirmed Plaintiff’s moderate disc disease and chronic shoulder
separation. (Tr. 577).
In April 2011, Dr. Jonathan Norcross, a State non-examining physician, submitted a physical
RFC assessment and opined Plaintiff could lift twenty-five pounds frequently and fifty pounds
occasionally; had an unlimited ability to push and pull; and had an RFC of medium “with
environmental limits to hazards” such as machinery and heights because of “PVCs/ectopy/syncopy.”
(Tr. 589-595). Dr. Judith Forte affirmed Dr. Norcross’s opinion on August 22, 2011. (Tr. 611).
At the administrative hearing, Plaintiff discussed his shoulder pain and explained he was
injured by a scaffolding accident while working as a dry-wall installer. (Tr. 103-104). Plaintiff also
testified his employer accommodated his limitations after the injury by allowing him to do “smaller
stuff [like] spot nail” and be a “gopher,” which allowed him to avoid scaffolding work, ceiling work,
or heavy lifting. (Tr. 105-106). During the hearing, the VE also testified:
I think the best classification for this in the DOT is carpenter ... it’s classified as medium
skilled work. The SVP:7. We didn’t talk about how it was performed. I would suspect it
was performed at heavy, though, and that is typically what I hear carpenters testify to.
(Tr. 104). The VE was not asked whether Plaintiff could perform his PRW as a carpenter. The only
analysis given to Plaintiff’s PRW in the written decision was the following statement:
The vocational expert testified that the claimant’s past relevant work as a carpenter, DOT
No. 860.381-022, is classified as medium skilled work with an SVP of 7, but performed at
the heavy level by the claimant. The claimant worked as a carpenter long enough to be
skilled at the job, and his earnings reached the level of substantial gainful activity. In
comparing the claimant’s residual functional capacity with the physical and mental demands
of this work, the undersigned finds the claimant is able to perform it as generally performed
at the medium level of exertion.
The ALJ’s decision was seemingly based on the State consultants’s RFC assessments, since
no other medical opinions appeared in the record and the ALJ indicated he concurred with the
opinions of the State’s medical consultants. (Tr. 88). The ALJ, however, did not address the State
consultants’s recommendation Plaintiff should avoid hazards such as machinery and heights, a
critical omission since these hazards would exist where carpenters work. The DOT, for instance,
indicates carpenters routinely use power and welding tools.
The ALJ also dismissed Plaintiff’s shoulder injury by saying the “x-rays of the left shoulder
were negative except for an old AC joint separation with deformity,” and did not discuss evidence
indicating Plaintiff had moderate degeneration in his spine. (Tr. 87). These conditions potentially
impacted his RFC. The conditions should have been further developed by either contacting Dr.
Embry or ordering a consultative physical examination, and then addressing these conditions in
detail in the written decision. See 20 C.F.R. § 404.1512(e)-(f); Vaughn v. Heckler, 741 F.2d 177,
179 (8th Cir. 1984).
The opinion of a consulting physician, who did not examine a Plaintiff, generally does not
constitute substantial evidence. See Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999). Given the
absence of a treating physician’s opinion in this case or a consultative examination, and the ALJ’s
failure to address several pieces of critical evidence, the ALJ’s RFC determination was not based
on substantial evidence.
The ALJ’s conclusion Plaintiff could perform his past relevant work as a carpenter without
the benefit of VE testimony and without making explicit findings regarding Plaintiff’s previous
position. At Step Four, the ALJ must review a claimant’s RFC and the physical and mental demands
of a claimant’s past work. See 20 C.F.R. § 404.1520(e) (1990). After a full investigation, the ALJ
should then make explicit findings on the demands of a claimant’s past relevant work and compare
those demands with the claimant’s RFC. See Nimick v. Secretary of Health & Human Servs., 887
F.2d 864, 866 (8th Cir. 1989). These findings require evidence of the “actual functional demands
and job duties of a particular past relevant job” or the “functional demands and job duties of the
occupation as generally required by employers throughout the national economy.” Id., n.2 (quoting
S.S.R. No. 82-61).
The ALJ did not consult the VE other than to classify Plaintiff’s PRW. As a result, there was
no VE testimony on whether Plaintiff could perform the carpenter job. The VE’s testimony only
indicated Plaintiff’s previous job was performed at the heavy exertional level, which exceeded an
RFC of medium and ruled out Plaintiff’s ability to perform his actual past job.
The lack of VE testimony is especially troubling since there are indications Plaintiff had nonexertional limitations of dizziness/syncope and alcoholism, the State consultants opined he should
avoid machinery and heights, and his past employer allowed him significant accommodations. These
points of conflict were not addressed or explained by the ALJ, and could have been resolved by
developing the VE’s testimony. The ALJ’s statement Plaintiff could perform his PRW as a carpenter
was conclusory and failed to fully consider whether he could perform his PRW, in light of his RFC,
either as it was actually performed or as it is usually performed in the national economy. See Kirby
v. Sullivan, 923 F.2d 1323, 1327 (8th Cir. 1991).
On remand, the ALJ is instructed to obtain a Medical Source Statement from Plaintiff’s
treating physicians or, in the alternative, order a consultative physical examination. Once the record
is adequately developed, the ALJ should investigate and make explicit findings regarding the
demands of Plaintiff’s PRW, including appropriate input from a VE, and compare that with what
Plaintiff is capable of doing before making a finding at Step Four.
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is not supported by substantial evidence and should be reversed and remanded. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
Dated this 19th day of March, 2015.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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