Riley v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 9, 2013. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
MELISSA D. RILEY
vs.

PLAINTIFF
Civil No. 4:12-cv-04025

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Melissa Riley (“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 (“DIB”) 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 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 filed her application for DIB on January 2, 2009. (Tr. 10, 97-100). Plaintiff alleged
she was disabled due to COPD, adrenal gland tumor, and herniated disc in back. (Tr. 116).
Plaintiffs alleged an onset date of March 24, 2008. (Tr. 116). Plaintiff’s DIB application was denied
initially and at the reconsideration levels. (Tr. 54-56, 59-63).
Plaintiff then requested an administrative hearing on her application. (Tr. 64). This hearing

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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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was held on June 15, 2010 in Texarkana, Arkansas. (Tr. 28-51). Plaintiff was present and was
represented by counsel, Charles Padgham at this hearing. See id. Plaintiff and Vocational Expert
(“VE”) Mack Welch testified at this hearing. See id. On the date of this hearing, Plaintiff was thirtyfour (34) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c) (2009),
and had obtained a GED. (Tr. 31).
On September 20, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB. (Tr. 10-19). The ALJ determined Plaintiff met the insured status requirements
of the Act through June 30, 2012. (Tr. 12, Finding 1). The ALJ also determined Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”) since March 24, 2008. (Tr. 12, Finding 2).
The ALJ determined Plaintiff had the following severe impairments: degenerative disc
disease of the lumbar spine, asthma, non-insulin diabetes dependent mellitus, hypertension, and
obesity. (Tr. 12, 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. 12-13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 13-18, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not totally credible. Id. 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. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, Finding 6). The ALJ
determined Plaintiff had PRW as a supply clerk and poultry processor. Id. The ALJ determined
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Plaintiff was unable to perform her PRW. Id. However, the ALJ then used Medical-Vocational
Guidelines Rule 201.28 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, §
201.27. (Tr. 19, Finding 10). 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. 19, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 95). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On March14, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on March 14, 2012. ECF No. 5. Both Parties have filed
appeal briefs. ECF Nos. 7,8. 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,
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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
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).
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3. Discussion:
Plaintiff brings the present appeal claiming the following: (A) the ALJ erred in his RFC
determination and (B) the ALJ erred in his credibility determination. ECF No. 7, Pgs. 2-7. In
response, Defendant argues the ALJ did not err in any of his findings. ECF No. 8. Because this
Court finds the ALJ erred in his RFC determination of Plaintiff, this Court will only address this
issue.
Plaintiff claims substantial evidence does not support the ALJ’s RFC determination.
Defendant argues the ALJ properly determined the Plaintiff’s RFC. 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
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,
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228 F.3d 860, 862 (8th Cir. 2000).
If the ALJ properly determines a claimant’s RFC is not significantly diminished by a
nonexertional limitation, then the ALJ may rely exclusively upon the Grids and is not required to
hear the testimony from a VE. However, the ALJ may not apply the Grids, and must hear testimony
from a VE, where a claimant’s RFC is significantly diminished by a nonexertional limitation. See
McGeorge v. Barnhart, 321 F.3d 766, 768-69 (8th Cir. 2003)
A “nonexertional limitation” is a limitation or restriction which affect a claimant’s “ability
to meet the demands of jobs other than the strength demands.” 20 C.F.R. § 404.1569a(a)(emphasis
added). Nonexertional limitations include the following: (1) difficulty functioning due to pain; (2)
difficulty functioning due to nervousness, anxiety, or depression; (3) difficulty maintaining attention
or concentration; (4) difficulty understanding or remembering detailed instructions; (5) difficulty
seeing or hearing; (6) difficulty tolerating a physical feature of a certain work setting (such as dust
or fumes); or (7) difficulty performing the manipulative or postural functions of some work such as
reaching, handling, stooping, climbing, crawling, or crouching. See 20 C.F.R. § 404.1569a(c)(1)
While the ALJ has the responsibility to determine the RFC, it is still the Plaintiff’s burden,
and not the Commissioner’s burden, to prove functional capacity. See Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004). The ALJ found Plaintiff had the RFC for the full range of light work. (Tr.
13). Based on the finding that Plaintiff could perform the full range of light work, the ALJ did not
seek the testimony of a VE to support his RFC determination. However the RFC determination is
not supported by substantial evidence because of the existence of nonexertional limitations as
discussed below.
On March 26, 2008, Plaintiff was seen by Dr. Thomas Jones and complained of lower left
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back pain radiating down her hip and into her left leg. (Tr. 234). On April 25, 2008, Plaintiff
underwent a lumbar MRI examination. (Tr. 256). The MRI revealed an impression of a left lateral
disc protrusion at L3-4 causing mild to moderate narrowing of the left neural foramen, as well as a
small left lateral disc protrusion at L4-5 causing mild narrowing of the left-sided neural foramen.
Id.
On referral from Dr. Jones, Plaintiff was seen by neurosurgeon Dr. Lee Buono on May 12,
2008. (Tr. 167-168). Dr. Buono indicated Plaintiff complained of left sided leg pain, numbness,
weakness and back pain which started in March 2008. Id. Plaintiff complained of radiating pain
from the back, to the left leg and into the left knee. Id. Dr. Buono reviewed the lumbar MRI as
showing a canal stenosis at L3-4 with a far lateral disk herniation compressing the existing L3 nerve
root and he considered this the cause of her symptoms. Id. Based on the neurologic symptoms, Dr.
Buono recommended surgery with left far lateral lumbar laminectomy and diskectomy. Id.
According to Dr. Buono, surgery was recommended to avoid permanent neurological deficits or
worsening deficits. Id.
On May 30, 2008, Plaintiff was admitted for surgery, but it was canceled because Plaintiff
had difficulty breathing. (Tr. 197). Surgery was attempted again on June 3, 2008, however it was
cancelled due to Plaintiff’s breathing difficulties that would have required the surgery to be
performed in a prone position which was deemed too risky. (Tr. 181-182). Finally, Plaintiff was
admitted again for surgery on November 13, 2008. (Tr. 170-177). This third attempt was also
cancelled due to breathing problems. Id.
There is no indication in the record that Plaintiff’s condition, which required surgery, has
changed. Plaintiff testified at her hearing that she continues to have back pain and numbness in her
leg. (Tr. 35). Certainly Plaintiff’s back condition is one which would include nonexertional limits
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of difficulty functioning due to pain and difficulty performing the manipulative or postural functions
of some work such as reaching, handling, stooping, climbing, crawling, or crouching.
After reviewing the record, this Court finds the ALJ’s RFC determination is not supported
by substantial evidence because the existence of nonexertional limitations should be included in any
decision regarding the Plaintiff’s RFC. When the ability to perform a full range of work for a
particular exertional level is compromised by the existence of nonexertional limitations, the ALJ is
required to consult a VE regarding the effect of those limitations on the availability of work. See
Beckley v. Apfel, 152 F.3d 1056, 1060 (8th Cir. 1998). In this matter, the ALJ did question a VE on
the Plaintiffs PRW, but did not pose a hypothetical question to the VE.
Based on the above, substantial evidence does not support the ALJ’s finding that Plaintiff
has the RFC to perform the full range of light duty work. This matter should be remanded for the
purpose of addressing Plaintiff’s nonexertional limitations and, if needed, the testimony of a VE
regarding the effect of all such limitations on the availability of work for the Plaintiff.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 9th day of May 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 point of error raised by the Plaintiff in this

appeal.

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