Ballard v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 24, 2016. (rg)

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

KENNETH E. BALLARD

PLAINTIFF

v.

CIVIL NO. 15-3041

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Kenneth E. Ballard, 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 period of disability and disability insurance benefits
(DIB) under the provisions of Title II 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 protectively filed his current application for DIB on June 15, 2011, alleging

an inability to work since June 15, 2011, 1 due to epileptic seizures, attention deficit disorder,
hearing loss, memory loss, left hand numbness, and sleep walking. (Doc. 11 pp. 135, 193).
An administrative hearing was held on July 16, 2013, at which Plaintiff appeared with counsel
and testified. (Doc. 11, pp. 32-78).

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Plaintiff, through his counsel, amended his onset date to April 1, 2012. (Doc. 11, pp. 40).

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By written decision dated February 21, 2015, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Doc.
11, p. 16). Specifically, the ALJ found Plaintiff had the following severe impairments: a
seizure disorder, mixed major and minor; a cognitive disorder; and depression. 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. (Doc. 11, p. 16). The ALJ found Plaintiff
retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) except the claimant
cannot drive or work at unprotected heights or around dangerous machinery.
The claimant can perform work limited to simple tasks and simple instructions.
(Doc. 11, p. 18). With the help of a vocational expert, the ALJ determined Plaintiff could
perform work as an inspector, and an assembler. (Doc. 11, p. 18).
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 May 22,
2015. (Doc. 11, p. 1). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before
the undersigned pursuant to the consent of the parties. (Doc. 6). Both parties have filed appeal
briefs, and the case is now ready for decision. (Docs. 9, 10).
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
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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)(c). A Plaintiff must show that his disability, not simply his 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 his claim; (2) whether the claimant has a severe physical
and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet

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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. 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. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d
504, 505 (8th Cir. 2000); 20 C.F.R. § 404.1520.
III.

Discussion:
Of particular concern to the undersigned is the ALJ’s RFC determination. RFC is the

most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). It is
assessed using all relevant evidence in the record. Id.

This includes medical records,

observations of treating physicians and others, and the claimant’s own descriptions of his
limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from symptoms such as
pain are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3). 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). Therefore, an ALJ’s
determination concerning a claimant’s RFC must be supported by medical evidence that
addresses the claimant’s ability to function in the workplace. Lewis v. Barnhart, 353 F.3d 642,
646 (8th Cir. 2003). “[T]he ALJ is [also] required to set forth specifically a claimant’s
limitations and to determine how those limitations affect his RFC.” Id.
In the present case, the ALJ determined that Plaintiff maintained the RFC to perform
light work with limitations. The ALJ found that Plaintiff’s impairments have a mental
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component and factored this evidence into the finding that Plaintiff maintained the ability to
perform unskilled work with seizure precautions. In making this determination, the ALJ
discussed Plaintiff’s intellectual test results, which indicated mild mental retardation, as well
as Plaintiff’s adaptive functioning which was much higher than expected given his intellectual
testing results. The ALJ appears to rely on the findings of Dr. Nancy A. Bunting who found
that Plaintiff’s actual abilities were not consistent with his testing level of intellectual
functioning, when determining that Plaintiff would be able to perform unskilled. What is
troubling to the undersigned is that Dr. Bunting also reported that she consulted a colleague
who along with her opined that Plaintiff either gave poor effort during the evaluation, which
was not indicated in the two previous mental consultative evaluations that also indicated
possible intellectual functioning deficits, or further neuropsychological testing was needed to
determine Plaintiff’s level of intellectual functioning. (Doc. 11, p. 549). It is also noteworthy
that the non-examining consultative doctor also recommended that the administration contact
Plaintiff’s most recent employer to see how Plaintiff performed his duties. (Doc. 11, p.471).
Plaintiff’s employer was contacted and reported that Plaintiff needed constant supervision due
to Plaintiff’s inability to grasp his job duties; that Plaintiff was easily distracted and needed to
be frequently redirected back on task; and that Plaintiff appeared to struggle to understand what
to do. (Doc. 11, p. 475). A review of Dr. Bunting’s evaluation indicates that no collateral
information was reviewed in connection with her evaluation of Plaintiff so the Court is
uncertain as to whether Dr. Bunting had Plaintiff’s previous employer’s report before her when
assessing Plaintiff. (Doc. 11, p. 543). After reviewing the record, the Court finds remand
necessary for the ALJ to more fully and fairly develop the record with respect to Plaintiff’s
mental RFC.

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On remand, the ALJ is directed to address interrogatories to a mental health
professional requesting that said professional review Plaintiff's medical records; complete a
RFC assessment regarding Plaintiff's capabilities during the time period in question; and give
the objective basis for the opinion so that an informed decision can be made regarding
Plaintiff's ability to perform basic work activities on a sustained basis. The ALJ may also order
a consultative examination, in which, the consultative examiner should be asked to review the
medical evidence of record, perform examinations and appropriate testing needed to properly
diagnosis Plaintiff's condition(s), and complete a medical assessment of Plaintiff's abilities to
perform work related activities. See 20 C.F.R. § 416.917.
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
assessments and supported by the evidence.
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 24th day of August, 2016.

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

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