Sauls v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 22, 2011. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
LISA WILKERSON SAULS
vs.

PLAINTIFF
Civil No. 4:10-cv-04083

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Lisa Wilkerson Sauls (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the
Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final
decision of the Commissioner of the Social Security Administration (“SSA”) denying her
applications for Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and
a period of disability under Titles II and XVI of the 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. 5.1 Pursuant to this authority, the Court issues this memorandum opinion and
orders the entry of a final judgment in this matter.
1. Background:
Plaintiff protectively filed applications for DIB and SSI on January 13, 2006. (Tr. 12).
Plaintiff alleged she was disabled due to several different impairments, including depression,
fibromyalgia, and a back condition. (Tr. 85). Plaintiff alleged an onset date of September 6, 2005.
(Tr. 85). These applications were denied initially and again upon reconsideration. (Tr. 12).

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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.”

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Thereafter, Plaintiff requested an administrative hearing on her applications, and this hearing request
was granted. (Tr. 32).
Plaintiff’s administrative hearing was held on June 6, 2007 in Little Rock, Arkansas and
Texarkana, Arkansas via video conference. (Tr. 279-304). Plaintiff was present and was represented
by counsel, Greg Giles, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Mack Welch
testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-five (45) years old, which
is defined as a “younger person” under 20 C.F.R. § 404.1563(c), and had a GED. (Tr. 282).
On May 30, 2008, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB and SSI. (Tr. 12-19). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2009. (Tr. 14, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since September 6, 2005, her
alleged onset date. (Tr. 14, Finding 2).
The ALJ determined Plaintiff had the severe impairment of a back disorder. (Tr. 14, Finding
3). The ALJ also determined Plaintiff’s impairments did not meet or medically equal the
requirements of any of the Listing of Impairments in Appendix 1 to Subpart P of Regulations No.
4 (“Listings”). (Tr. 15, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 15-18, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to perform light work activity. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, Finding 6). The ALJ
determined Plaintiff’s PRW included work as a retail store manager and payroll clerk. (Tr. 18).

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Based upon her RFC, the ALJ determined Plaintiff would be able to perform this PRW. Id. The
ALJ then determined Plaintiff had not been under a “disability,” as defined by the Act, at any time
through the date of his decision. (Tr. 18, Finding 7).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 8). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 3-5). On June 16, 2010, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on June 23, 2010. ECF No. 5. Both Parties have filed appeal briefs.
ECF Nos. 8-9. This case is now ready for decision.
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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. See 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

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proving his or her disability by establishing a physical or mental disability that lasted at least one
year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,
160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
a “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 or her disability, not simply his or her impairment, has lasted for at least twelve consecutive
months. See 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He 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 Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3. Discussion:
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
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substantial evidence in the record. ECF No. 8 at 6-18. Specifically, Plaintiff claims the ALJ erred
(1) by failing to find Plaintiff’s impairments met or equaled a Listing, (2) by failing to properly
assess her fibromyalgia (3) in evaluating her RFC, (4) by failing to properly evaluate the medical
evidence, and (5) in evaluating her subjective complaints. In response, the Defendant argues the ALJ
did not err in any of his findings. ECF No. 9. Because this Court finds the ALJ’s RFC
determination is not supported by substantial evidence, this Court will only address this issue.
Plaintiff claims the medical evidence does not support the ALJ’s RFC finding that Plaintiff
could perform work at the light level. Defendant claims substantial evidence supports the ALJ’s
RFC determination of decision of Plaintiff.
In the present case, Plaintiff filed additional medical evidence with the Appeals Council,
which was reviewed and considered prior to the issuance of the Appeals Council’s determination.
(Tr. 3-6). When “a claimant files additional medical evidence with a request for review prior to the
date of the [Commissioner’s] final decision, the Appeals Council MUST consider the additional
evidence if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before
the date of the ALJ’s decision.” Williams v. Sullivan, 905 F.2d 214, 215-216 (8th Cir. 1990).
However, the timing of the evidence is not dispositive of whether the evidence is material. Evidence
obtained after an ALJ decision is material if it related to the claimant's condition on or before the
date of the ALJ's decision. Id
When it is clear the Appeals Council has considered newly submitted evidence, this Court
does not evaluate the Appeals Council's decision to deny review. Instead, a decision is made on
whether the ALJ’s determination is supported by substantial evidence on the record as a whole,
including the new evidence submitted after the determination was made. See, e.g., Nelson v.
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Sullivan, 966 F.2d 363, 366 (8th Cir. 1992), and Browning v. Sullivan, 958 F.2d 817, 822 (8th
Cir.1992). This means there is a need to speculate to some extent on how the ALJ would have
weighed the newly submitted medical reports if those reports had been available for the original
hearing. Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994).
The Plaintiff alleged disability in part due to back pain. (Tr. 85). Additional evidence
submitted to the Appeals Council indicates treatment for complaints of back pain. (Tr. 220-278).
Of particular significance are the medical records from Dr. Lee Buono from April 23, 2008 through
December 10, 2008. (Tr. 222-261). These records were submitted to the Appeals Council following
the ALJ’s May 20, 2008 decision. (Tr. 220). However a portion a these records are within the
relevant time period.
On April 23, 2008, Plaintiff was seen by Dr. Buono with complaints of back pain. (Tr. 224).
Following this exam, Dr. Buono requested Plaintiff undergo a CT scan of her lumbar spine. (Tr.
224). Plaintiff returned to Dr. Buono on May 7, 2008 following her CT scan. (Tr. 223). After
viewing the results of the CT scan, Dr. Buono recommended surgery. (Tr. 223). On May 13, 2008,
Plaintiff underwent a lateral mass fusion at the L4-5 level and bilateral L4-5 pedicle screws with
dynamic stabilization. (Tr. 233-234).
On July 21, 2008, Dr. Buono wrote a letter stating Plaintiff had cervical spondylosis,
herniated discs, and lumbar spondylosis. Further, because of her chronic problems, Plaintiff would
be disabled and unable to obtain any gainful employment. (Tr. 222).
This Court is aware that the Eighth Circuit has held that a medical source’s opinion that a
claimant is “disabled” or “unable to work” involves an issue reserved to the Commissioner and is
not the type of medical opinion to which the Commissioner gives controlling weight. Ellis v.
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Barnhart, 392 F.3d 988, 994 (8th Cir. 2005); 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1). However,
given Plaintiff’s medical history and the aforementioned evidence submitted to the Appeals Council,
this matter should be remanded to the ALJ for further consideration. 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). Given
the fact that the extent of Plaintiff’s back pain was not known or considered by the ALJ, or any of
the doctors completing the RFC assessments in this case, it can not be said that the ALJ’s RFC
assessment is supported by substantial evidence. An “ALJ must not substitute his opinions for those
of the physician.” See Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990).
Accordingly, remand is necessary to allow the ALJ to obtain a more recent assessment of
Plaintiff’s ability to function in the work place.
4. Conclusion:
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.
ENTERED this 22nd day of July, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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