Douglas v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 12, 2013. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
MARK DOUGLAS
vs.

PLAINTIFF
Civil No. 4:12-cv-04019

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Mark Douglas (“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 his application for
Disability Insurance Benefits (“DIB”) and a 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. 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 filed his application for DIB on August 10, 2010. (Tr. 9, 98-99). Plaintiff alleged
he was disabled due to type 1 diabetes, neuropathy, high blood pressure, depression, warts, heart
attack, and mood swings. (Tr. 134). Plaintiff alleged an onset date of October 5, 2009. (Tr. 134).
Plaintiff’s application was denied initially and at the reconsideration level. (Tr. 44-46, 49-50).

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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 10, 2011, Plaintiff requested an administrative hearing on his application. (Tr. 5253). This hearing was held on September 1, 2011 in Texarkana, Arkansas. (Tr. 22-41). Plaintiff
was present and was represented by his attorney at this hearing. See id. Plaintiff and Vocational
Expert (“VE”) Jerry Hildrey testified at this hearing. See id. On the date of this hearing, Plaintiff
was forty (40) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c)
(2009), and had a GED. (Tr. 26).
On October 31, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 9-17). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity
(“SGA”) since October 5, 2009. (Tr. 11, Finding 2). The ALJ determined Plaintiff had the severe
impairments of diabetes mellitus with neuropathy and retinopathy and depression. (Tr. 11, 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. 11-13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 13-15). First, the ALJ evaluated Plaintiff’s subjective complaints pursuant to the requirements
of 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 and found his claimed limitations were not totally
credible. (Tr. 14). 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 for
medium work limited to unskilled work with no complex or detailed instructions. (Tr. 13, Finding
5).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and his ability to perform
that work and other work in the national economy. (Tr. 15, Finding 6). The ALJ determined,
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considering his RFC, that Plaintiff would be unable to perform his PRW. Id. The ALJ, however,
also determined there was other work existing in significant numbers in the national economy
Plaintiff could perform. (Tr. 16, Finding 10). The ALJ then used Medical-Vocational Guidelines
Rule 203.29 to reach a conclusion of “not disabled,” based on Plaintiff’s age, education, vocational
background, and residual functional capacity. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.21. (Tr.
16). The ALJ then determined Plaintiff had not been under a “disability,” as defined by the Act, at
any time through the date of the decision. (Tr. 16, Finding 11).
On November 10, 2011, Plaintiff requested the Appeals Council review the ALJ’s
unfavorable decision. (Tr. 5). See 20 C.F.R. § 404.968. On January 9, 2012, the Appeals Council
declined to review the ALJ’s unfavorable decision. (Tr. 1-3). On March 2, 2012, Plaintiff filed the
present appeal. ECF No. 1. The parties consented to the jurisdiction of this Court on March 13,
2012. ECF No. 5. Both parties have filed appeal briefs. ECF Nos. 8, 10. 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
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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).
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
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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 his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 8 at 10-20. Specifically, Plaintiff claims the ALJ erred
(1) by failing to find Plaintiff met Listing 9.08, (2) by failing to properly evaluate the severity of
Plaintiff’s chronic pain, (3) by failing to give proper weight to the opinions of Plaintiff’s treating
physician, and (4) by failing to fully and fairly develop Plaintiff’s vocational profile. Id. 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.
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
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
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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 for medium work limited to
unskilled work with no complex or detailed instructions. (Tr. 13, 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 physician, Dr. Shawn Stussy. ECF No. 8, Pgs. 16-19.
Defendant argues the ALJ considered these opinions but properly disregarded them for being
inconsistent with the evidence in the record. ECF No. 10, Pgs, 9-11.
Social Security Regulations and case law state that 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.
§ 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)).
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Plaintiff was first seen by his treating physician, Dr. Stussy, on March 22, 2011. (Tr. 371373). Plaintiff complained of fatigue, diminished sensation in his feet and legs, and dizziness. Id.
Plaintiff was also treated for diabetes, anxiety, and hypertension. Id. Plaintiff was seen by Dr.
Stussy for several follow up visits between March 31, 2011 and July 7, 2011. (Tr. 356-373, 389385). Additionally on May 16, 2011, Dr. Stussy prepared correspondence to the medical file which
indicated in his opinion, Plaintiff was “permanently disabled” (Tr. 350). Finally, on May 19, 2011,
Dr. Stussy prepared a RFC Evaluation for Plaintiff. (Tr. 351-354). Dr. Stussy’s findings indicate
Plaintiff would need complete freedom to rest frequently with standing and sitting, and could do no
lifting or carrying. Id.
In his opinion, the ALJ never mentioned Dr. Stussy’s name, but he did indicate he reviewed
the opinions of Plaintiff’s treating physician. (Tr. 15). He then stated he gave those opinions no
weight. Id. His basis for giving no weight was that the opinions were not supported by the treatment
records and the Plaintiff’s testimony conflicted these opinions. Id. There was no further discussion
or detail given by the ALJ regarding Dr. Stussy’s opinions or the basis for discounting them.
The ALJ has the responsibility to determine which findings are inconsistent and which
opinions should be given greater weight than other opinions. See Brown v. Astrue, 611 F.3d 941,
951-52. However, when an ALJ determines that a treating physician’s opinion should be discounted,
“he should give good reasons for doing so.” Id. (internal quotation and citation omitted). In this
matter, The ALJ’s complete lack of analysis and review certainly does not amount to “good reasons”
for discounting Dr. Stussy’s findings. See Brown, 611 F.3d at 951-52. Furthermore, the record does
not contain other medical assessments which are supported by better or more thorough medical
evidence as required by SSR 96-2p in order to disregard a treating physician’s opinion.
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In this matter 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.
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 12th day of February 2013.
/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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