Scott v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on August 25, 2017. (rg)

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

PLAINTIFF

v.

CIVIL NO. 16-3045

NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Tammy Scott, 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 protectively filed her applications for DIB and SSI on January 23, 2013,

alleging an inability to work since June 15, 2008, due to an adjustment disorder, obsessive
compulsive disorder, dependent personality disorder, and psychosis.

(Tr. 298). An

administrative hearing was held on August 15, 2014, at which Plaintiff appeared with counsel
and testified. A friend of Plaintiff’s also testified, as did a vocational expert. (Tr. 84-115).
By written decision dated December 22, 2014, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe.

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Nancy A. Berryhill, 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.

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Specifically, the ALJ found Plaintiff had the following severe impairments: major depressive
disorder, severe; generalized anxiety disorder; and borderline personality disorder. (Tr. 68).
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. 69). The ALJ found
Plaintiff retained the residual functional capacity (RFC) to:
Perform a full range of work at all exertional levels but with the following
nonexertional limitations: She is limited to work where interpersonal contact
is incidental to the work performed; complexity of tasks is learned and
performed by rote, with few variables, requiring little judgment; and
supervision required is direct, simple, and concrete.
(Tr. 70.)
With the help of a vocational expert, the ALJ determined Plaintiff could perform her
past relevant work as an inspector/packager, as well as other jobs, such as housekeeper,
machine tender-one, and inspector. (Tr. 77-78).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which,
after considering additional evidence submitted by the Plaintiff, denied that request on March
22, 2016. (Tr. 1-4). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the
undersigned pursuant to the consent of the parties. (Doc. 5). Both parties have filed appeal
briefs, and the case is now ready for decision. (Docs. 10, 11).
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 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 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 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), abrogated on other grounds by Higgins v.
Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. §§ 404.1520, 416.920.
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 her
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 determining the Plaintiff’s RFC in the present case, the ALJ relied upon a mental
diagnostic evaluation performed by Psychologist Terry L. Efird on April 15, 2013, and mental
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RFC assessments completed by non-examining state agency medical consultants on April 16,
2013, and July 1, 2013. (Tr. 125-128, 152-155, 500-504). The ALJ discounted a mental
medical assessment completed in September 2014, 17 months after Dr. Efird’s evaluation, by
Licensed Professional Counselor Joan Shepard. (Tr. 603-607). Ms. Shepard indicated that she
had been seeing the Plaintiff twice a month for two years. Ms. Shepard noted that the Plaintiff
continued to hallucinate and have crying spells, despite being prescribed two anti-psychotics
and antidepressants. The symptoms identified by Ms. Shepard included: loss of interest in
almost all activities, decreased energy, thoughts of suicide, intense and unstable interpersonal
relationships,

hallucinations/delusions,

difficulty

thinking/concentrating,

emotional

withdrawal/isolation, illogical thinking, easy distractibility, memory impairment, and recurrent
severe panic attacks. Ms. Shepard noted that Plaintiff had serious problems with stress,
especially in social situations, and assessed her with “no useful ability to function” or “unable
to meet competitive standards” in all mental abilities and aptitudes needed to perform both
skilled and unskilled work.
The ALJ stated that he gave Ms. Shepard’s assessment “some weight” but found that
it was not entirely supported by the other available evidence of record and that Ms. Shepard
was not considered an acceptable medical source. Ms. Shepard’s assessment, however, is
supported by her twice weekly counseling sessions with the Plaintiff over a period of two years.
Dr. Efird only saw the Plaintiff on one occasion and did not have the benefit of reviewing the
extensive treatment Plaintiff received during the 17 months following his evaluation. Further,
evidence submitted and considered by the Appeals Council reflects that less than two months
after the date of the ALJ’s decision, Plaintiff was hospitalized at Vantage Point for over three
weeks, and, about two months after that, was hospitalized again for approximately one week.
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While these hospitalizations occurred after the date of the ALJ’s decision, they were very close
in time to the decision and Plaintiff’s symptoms during her hospitalizations were very
consistent with those she experienced during the time period considered by the ALJ. The
records from these hospitalizations indicate that Plaintiff complained about hearing voices
telling her to shoot herself, suicidal ideas, daily depression, crying spells, difficulty
concentrating, memory problems, outbursts of anger, decreased sociability, and manic
symptoms. Plaintiff was diagnosed with and treated for schizoaffective disorder, bipolar type.
(Tr. 6-26, 28-61).
In light of the significant symptoms Plaintiff experienced and treatment she received
following Dr. Efird’s evaluation, which evaluation formed the basis for the ALJ’s RFC
determination, the Court believes that remand is necessary for the ALJ to more fully and fairly
develop the record regarding Plaintiff’s mental RFC. Specifically, the ALJ is directed to
address interrogatories to a medical professional requesting that said physician review
Plaintiff's medical records; complete a mental 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. 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

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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 25th day of August 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE

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