Wray v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 26, 2014. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
LISA A. WRAY
vs.

PLAINTIFF
Civil No. 4:13-cv-04021

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Lisa Wray (“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 application for a
Disability Insurance Benefits (“DIB”) 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. 7.1 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 an application for DIB on October 26, 2006. (Tr. 337-339).

Plaintiff alleged she was disabled due to kidney cancer, degenerative disc back and neck, and edema.
(Tr. 382). Plaintiff alleged an onset date of October 6, 2006, which amended to July 2, 2008. (Tr.
22).

This application was denied initially and again upon reconsideration. (Tr. 178-183).

Thereafter, Plaintiff requested an administrative hearing on her application and this hearing request
was granted. (Tr. 184).

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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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Plaintiff’s initial administrative hearing was held on October 27, 2008. (Tr. 38-69). Plaintiff
was present at this hearing and was represented by counsel, Greg Giles. Id. Plaintiff and Vocational
Expert (“VE”) Dr. Watts testified at this hearing. Id. As of 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)
(2008) (DIB). (Tr. 42). Plaintiff testified she finished the 21th grade and received a GED. (Tr. 43).
On January 29, 2009, the ALJ issued an unfavorable decision, which was remanded back
to an ALJ by the Appeals Council. (Tr. 139-149, 150-153). Plaintiff had a second administrative
hearing on May 17, 2011. (Tr. 70-99). Following this, on June 20, 2011, the ALJ issued an
unfavorable decision, which was again remanded back to the ALJ by the Appeals Council. (Tr.
154-163, 169-173). Plaintiff had a third administrative hearing on March 22, 2012. (Tr. 100-136)
On May 4, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s application for
DIB. (Tr. 22-29). In this decision, the ALJ found Plaintiff met the insured status requirements of
the Act through December 31, 2010. (Tr. 24, Finding 1). The ALJ also determined Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”) since July 2, 2008, her amended onset date. (Tr.
24, Finding 2).
The ALJ determined Plaintiff had severe impairments including carpal tunnel syndrome,
status post renal cell carcinoma in remission, morbid obesity, sleep apnea, non-insulin dependent
diabetes, and degenerative changes in the cervical and lumbar spine. (Tr. 25, Finding 3). The ALJ
also determined Plaintiff’s impairments did not meet or medically equal the requirements of any of
the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 25,
Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 25-28, Finding 5). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and
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found her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff
retained the RFC to perform light work with the ability to change positions every 30 minutes for one
to two minutes, posturals limited to occasional, no climbing ropes, ladders, or scaffolds, and fine and
gross manipulation limited frequently. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 28, Finding 6). The VE
testified at the administrative hearing regarding Plaintiff’s PRW. (Tr. 131-135). Based upon this
testimony, the ALJ found Plaintiff capable of performing her PRW as a pharmacy technician and
medical receptionist. (Tr. 28). Because Plaintiff retained the capacity to perform her PRW, the ALJ
determined Plaintiff had not been under a disability as defined in the Act from July 2, 2008 through
the date of the decision. (Tr. 29, Finding 7).
On December 18, 2012, the Appeals Council granted Plaintiff’s request to review the ALJ’s
decision based only on an incorrect finding as to Plaintiff’s date last insured. (Tr. 174-177). The
ALJ found Plaintiff’s date last insured was December 31, 2010, but the record established Plaintiff’s
date last insured was December 31, 2011. (Tr. 175). Therefore, the ALJ did not address Plaintiff’s
disability status from January 1, 2011, through December 31, 2011. (Tr. 175). The Appeals Council
issued an unfavorable decision dated February 5, 2013, adopting the ALJ’s findings and rationale,
but extending these findings to address the additional period in 2011 in light of the correct date last
insured. (Tr. 1-8).
On February 19, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on February 26, 2013. ECF No. 7. Both Parties have filed appeal
briefs. ECF Nos. 10, 11. This case is now ready for decision.
2.

Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
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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).
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
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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 decision is not supported by substantial

evidence in the record. ECF No. 10. Specifically, Plaintiff claims the following: (1) the ALJ
improperly considered the Listings; (2) the ALJ erred in discounting the opinions of her treating
physicians (3) the ALJ erred in his RFC determination; and (4) in failing to present a hypothetical
to the VE. Id. In response, the Defendant argues the ALJ did not err in any of his findings. ECF
No. 11.
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)).
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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 for light work, with the ability to
change positions every 30 minutes for one to two minutes, posturals limited to occasional, no
climbing ropes, ladders, or scaffolds, and fine and gross manipulation limited frequently. (Tr. 25,
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 her treating physician. Defendant argues
the ALJ and Appeals Council considered these opinions but properly disregarded them for being
inconsistent with the evidence in the record.
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
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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)).
Plaintiff’s treating physician, Dr. Darren Ashbrook, prepared two RFC Evaluations. The first
on May 13, 2011 and the second on January 14, 2013. (Tr. 1122-1125, 1499-1502). In Dr.
Ashbrook’s initial assessment, he was of the opinion Plaintiff could stand and walk 2 to 4 hours a
work day; sit 4 to 6 hours a work day; alternate sitting and standing every 20 minutes; lift and carry
up to 20 pounds occasionally; operate foot controls; but not able to do grasping, pushing, pulling,
or fine manipulation. (Tr. 1122-1125). He also indicated Plaintiff was able to occasionally balance,
but was limited to stooping, crouching, climbing, crawling, kneeling, and reaching above shoulder
level to less then 1/3 a day. Id.
In Dr. Ashbrook’s second assessment, he found Plaintiff could lift and carry 10 pounds
occasionally and less than 10 pounds frequently; stand and walk less than 2 hours; sit 2 hours;
required 15 to 20 minute breaks every two hours; could occasionally twist and climb stairs; could
never stoop, crouch, kneel, crawl, or climb ladders; could never reach or push/pull; could
occasionally handle, finger, and feel; and must avoid all exposure to extreme temperatures, fumes,
and hazards. (Tr. 1499-1502). He stated Plaintiff was incapable of low stress and should use an
assistive device for occasional standing and walking. Id.
In this matter, the ALJ made no mention of Dr. Ashbrook’s initial evaluation of May 2011.
Of course the second evaluation was prepared following his opinion. The Appeals Council, in their
decision did mention the evaluations of Dr. Ashbrook, but found these opinions were only entitled
to little weight. (Tr. 5-6). In making this finding, the Appeals Council only basis was that the
opinions were inconsistent with each other and were inconsistent with the opinion of Dr. Sterling
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Moore who testified at Plaintiff’s hearing, but has never treated Plaintiff. Id. This was the Appeals
Council’s entire analysis.
The ALJ and Appeals Council had 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 it is determined 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 complete lack of analysis and review certainly does not amount
to “good reasons” for discounting Dr. Ashbrook’s findings. See Brown, 611 F.3d at 951-52.
Substantial evidence does not support the ALJ’s decision of Plaintiff being not disabled
because the failure to properly analyze the opinions of Plaintiff’s treating physician, Dr. Ashbrook.
Because neither the ALJ nor the Appeals Council properly reviewed the opinions of Plaintiff’s
treating physicians, this case should be reversed and remanded for proper review and analysis of the
opinions of Dr. Ashbrook.
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 26th day of February 2014.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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