Bearden v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on November 28, 2011. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
TEENA M. BEARDEN
vs.

PLAINTIFF
Civil No. 4:10-cv-04164

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Teena M. Bearden (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying her application for a
Disability Insurance Benefits and period of disability under Title II 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 postjudgment proceedings. ECF No. 11.1 Pursuant to this authority, the Court issues this memorandum
opinion and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff filed her application for DIB on February 15, 2006. (Tr. 83-87). Plaintiff alleged
she was disabled due to back, neck, feet and leg pain and deteriorating disks. (Tr. 106). Plaintiff
alleged an onset date of April 4, 2003. (Tr. 106). Plaintiff’s application was denied initially and was
denied at the reconsideration level. (Tr. 69-71, 75-76).

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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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On March 7, 2007, Plaintiff requested an administrative hearing on her application. (Tr. 77).
This hearing was held on June 5, 2008 in Texarkana, Arkansas. (Tr. 31-56). Plaintiff was present
and was represented by counsel, Howard Goode, at this hearing. See id. Plaintiff, her husband
Wayne Bearden, daughter-in-law Marsha Lee Johnston, and Vocational Expert Mack Welsh (“VE”)
testified at this hearing. See id. On the date of this hearing, Plaintiff was forty nine (49) years old,
which is defined as a “younger person” under 20 C.F.R. § 404.1563(c) (2009), and had a 10th grade
education. (Tr. 40, 46).
On March 13, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 20-27). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity
(“SGA”) since April 4, 2003. (Tr. 26, Finding 2). The ALJ determined Plaintiff had the severe
impairments of degenerative disc disease of the lower spine, obesity, gastroesophageal reflux
disease, hypertension, hypothyroidism, asthma, and lumbago. (Tr. 26, Finding 3). The ALJ also
determined, however, that Plaintiff did not have an impairment or a combination of impairments that
met or medically equaled one of the listed impairments in the Listing of Impairments in Appendix
1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 26, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 21-25). First, the ALJ evaluated Plaintiff’s subjective complaints pursuant to the requirements
of Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) and found her claimed limitations were not
totally credible. (Tr. 21). Second, the ALJ determined, based upon his review of Plaintiff’s
subjective complaints, the hearing testimony, and the evidence in the record, that Plaintiff retained
the RFC to perform the full range of light work activity level. (Tr. 27, Finding 5).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and her ability to perform
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that work and other work in the national economy. (Tr. 27, Findings 6, 7). Plaintiff and the VE
testified at the administrative hearing regarding these issues. (Tr.43-44, 54-55). Based upon this
testimony, the ALJ determined Plaintiff’s PRW included work as a cashier and assistant manager.
(Tr. 27). The ALJ determined, considering his RFC, that Plaintiff would be able to perform her
PRW. (Tr. 27, Finding 6).
The ALJ, however, also determined there was other work existing in significant numbers in
the national economy Plaintiff could perform. (Tr. 27, Finding 7). The ALJ based his determination
upon the testimony of the VE. Id. Specifically, the VE testified that given all Plaintiff’s vocational
factors, a hypothetical individual would be able to perform the requirements of a representative
occupation such as an inventory clerk with approximately 165,000 such jobs in the region and
530,000 such jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff had not
been under a disability, as defined by the Act , at any time through the date of the ALJ’s decision.
(Tr. 27, Finding 9). The ALJ also used Medical-Vocational Guidelines Rule 202.11 and 202.12 to
reach a conclusion of “not disabled,” based on Plaintiff’s age, education, vocational background, and
RFC. (Tr. 27, Finding 8).
On April 2, 2009, Plaintiff requested the Appeals Council review the ALJ’s unfavorable
decision. (Tr. 28). See 20 C.F.R. § 404.968. On September 22, 2010, the Appeals Council declined
to review the ALJ’s unfavorable decision. (Tr. 1-5). On November 18, 2010, Plaintiff filed the
present appeal. ECF No. 1. The parties consented to the jurisdiction of this Court on July 8, 2011.
ECF No. 11. Both parties have filed appeal briefs. ECF Nos. 9, 10. This case is now ready for
decision.

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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
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).
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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
substantial evidence in the record. ECF No. 9 at 3-8. Specifically, Plaintiff claims the ALJ erred
(1) in evaluating her subjective complaints and (2) improperly evaluated the opinions of Plaintiff’s
treating physicians. In response, the Defendant argues the ALJ did not err in any of his findings.
ECF No. 10. Because this Court finds the ALJ improperly evaluated the opinions of Plaintiff’s
treating physician, this Court will only address this issue Plaintiff raised.
Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required
to determine a claimant’s RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must
be based on medical evidence that addresses the claimant’s ability to function in the workplace. See
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Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). The ALJ should consider “‘all the evidence
in the record’ in determining the RFC, including ‘the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.’” Stormo v. Barnhart,
377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002)).
The Plaintiff has the burden of producing documents and evidence to support his or her claimed
RFC. See Cox, 160 F.3d at1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The ALJ, however, bears the primary responsibility for making the RFC determination and
for ensuring there is “some medical evidence” regarding the claimant’s “ability to function in the
workplace” that supports the RFC determination. Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir.
2001). Furthermore, this Court is required to affirm the ALJ’s RFC determination if that
determination is supported by substantial evidence on the record as a whole. See McKinney v. Apfel,
228 F.3d 860, 862 (8th Cir. 2000).
In this matter, the ALJ determined Plaintiff had the RFC to perform a full range of light work
activity. (Tr. 27, Finding 5). Plaintiff claims substantial evidence does not support the ALJ’s RFC
determination because the ALJ erred in his treatment of the opinions of his treating physicians, Dr.
Shawn Stussy and Dr. James Weedman. ECF No. 9, Pgs. 7-8. Defendant argues the ALJ considered
these opinions but properly disregarded them for being inconsistent with the evidence in the record.
ECF No. 10, Pgs, 9-12.
Social Security Regulations and case law state a treating physician's opinion will be granted
“controlling weight,” provided it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.”
See SSR 96-2p; Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000)(citing 20 C.F.R. §
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404.1527(d)(2)). An ALJ is required to give good reasons for the particular weight given to a
treating physician’s evaluation. See Prosch, 201 F.3d at1013 (citing 20 C.F.R § 404.1527(d)(2), and
SSR 96-2p). An ALJ may disregard the opinion of a treating physician only where other medical
assessments “are supported by better or more thorough medical evidence,” or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions. Id. at 1013
(quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), and Cruze v. Chater, 85 F.3d 1320,
1324-25 (8th Cir. 1996)).
On May 12, 2006, Dr. Stussy prepared a Physician’s Source Statement. (Tr. 480). According
to the Physician’s Source Statement, Dr. Stussy first examined Plaintiff in June 2005 and last
examined Plaintiff on May 12, 2006. Id. Dr. Stussy diagnosed Plaintiff with lumbago and stated
that due to Plaintiff’s impairments, she would miss about three days of work per month due to
significant back pain and she would have to take one to two unscheduled 10 minute breaks per day
during an 8-hour workday. Id. According the ALJ, he considered Dr. Stussy’s opinion, but in light
of the overall record, he determined the opinion was not persuasive. (Tr. 23). The ALJ provided
no further analysis for his treatment of Dr. Stussy’s opinions. The ALJ did not provide detail as to
how Dr. Stussy’s opinions were unsupported or inconsistent with other substantial evidence in the
record.
On September 4, 2009, Dr. Weedman completed a Physician’s Source Statement of Plaintiff.
(Tr. 562-564). After the ALJ’s March 13, 2009 opinion, Plaintiff submitted Dr. Weedman’s
Physician’s Source Statement to the Appeals Council. (Tr. 5). Dr. Weedman stated he treated
Plaintiff from June 12, 2009 to September 3, 2009. (Tr. 562). Therefore, all of Dr. Weedman’s
treatment of Plaintiff occurred after the ALJ rendered his March 13, 2009 opinion. (Tr. 27).
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Because of this, Dr. Weedman’s Physician’s Source Statement is not material and did not relate to
the period on or before the date of the ALJ’s decision. (Tr. 562-564). As a result, the Appeals
Council was not required to consider this evidence. See 20 C.F.R. §§ 404.976(b), 416.1476(b).
However, substantial evidence does not support the ALJ’s decision of Plaintiff being not
disabled because the ALJ failed to properly analyze the opinion of Plaintiff’s treating physician, Dr.
Stussy. Because the ALJ did not properly review the opinions of Plaintiff’s treating physician, this
case should be reversed and remanded for proper review and analysis of the opinions of Dr. Stussy.
This remand should include a discussion of the opinions of Dr. Weedman also. Upon remand, the
ALJ may still find Plaintiff not disabled, however a proper and complete analysis pursuant to 20
C.F.R. § 404.1527(d)(2) must be performed.2
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 28th day of November, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in this

appeal.

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