Stone v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 15, 2014. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 4:13-cv-04069
Commissioner, Social Security Administration
Tabitha Stone (“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
Supplemental Security Income (“SSI”) and a period of disability under Title 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.
Plaintiff filed her application for SSI on June 19, 2007. (Tr. 38-40). Plaintiff alleged she was
disabled due to obesity and back problems. (Tr. 97). Plaintiff alleged an onset date of June 3, 2007.
(Tr. 97). This application was denied initially and again upon reconsideration. (Tr. 58-60, 65-66).
On August 6, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s request for SSI. (Tr.
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.”
8-15). Plaintiff appealed the unfavorable decision in federal district court, and the Court remanded
the case for consideration of additional evidence on August 26, 2011. (Tr. 486-494). Based on the
district court’s order, the Appeals Council remanded the case back to the ALJ for reconsideration
of the evidence. (Tr. 495-498).
After remand Plaintiff had an administrative hearing on May 16, 2012 and February 25, 2013.
(Tr. 393-429, 430-465). Plaintiff was present and represented by Shannon Carroll, at these hearings.
Id. Plaintiff testified at both hearings and Medical Experts Dr. Steven Golstein and Dr. Rick Adams
testified at the second hearing. Id. On the date of the hearings, Plaintiff was twenty-nine (29) years
old and had a high school education. (Tr. 399).
On May 6, 2013, the ALJ entered an unfavorable decision denying Plaintiff’s request for SSI.
(Tr. 380-387). In this decision, the ALJ determined Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since June 19, 2007. (Tr. 382, Finding 1). The ALJ determined Plaintiff had
severe impairments of morbid obesity and mild degenerative disc disease. (Tr. 383, Finding 3). The
ALJ also determined the Plaintiff did not have an impairment or combination of impairments that
met or medically equaled one of the listed impairments contained in the Listing of Impairments in
Appendix 1 to Subpart P of Regulations No. 4 (“Listings”).
(Tr. 383, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her
Residual Functional Capacity (“RFC”). (Tr. 384-386, 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 the full range of sedentary work.
(Tr. 384, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 386, Finding 6). The ALJ
determined Plaintiff had no PRW. Id. The ALJ then used Medical-Vocational Guidelines Rule
201.27 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.
386, Finding 10). The ALJ then determined Plaintiff had not been under a “disability,” as defined
by the Act, at any time since June 19, 2007. (Tr. 387, Finding 11).
On July 12, 2013, Plaintiff appealed the ALJ’s decision to this Court. ECF No. 1. Both
parties have filed appeal briefs. ECF Nos. 10, 11. The parties consented to the jurisdiction of this
Court on July 12, 2013. ECF No. 5.
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).
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).
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 10 at 13-21. Specifically, Plaintiff claims the ALJ erred
(1) in failing to find Plaintiff met Listing 1.02, (2) in failing to evaluate Plaintiff’s non-exertional
complaints, (3) in evaluating her RFC, and (4) in failing to have a Vocational Expert testify at the
hearing . In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 11.
Because this Court finds the ALJ improperly evaluated Plaintiff’s RFC, this Court will only address
this issue Plaintiff raised.
Plaintiff argues she does not have the RFC for the full range of sedentary work and there is
not substantial evidence to support such a finding by the ALJ. Plaintiff argues the ALJ erred by
failing to include Plaintiff’s nonexertional limitations in his RFC determination. Defendant argues
the ALJ’s determination that Plaintiff has the RFC for the full range of sedentary work is supported
by substantial evidence.
Prior to Step 4 of the sequential analysis, the ALJ is required to determine the 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 also 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 to support his or her claimed RFC. See Cox, 160 F.3d at
1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
Once the Plaintiff meets that burden, the ALJ bears the primary responsibility for making the
RFC determination and for ensuring that there is “some medical evidence” regarding the claimant’s
“ability to function in the workplace” that supports his or her RFC determination. Lauer v. Apfel,
245 F.3d 700, 703-04 (8th Cir. 2001). The ALJ also has the duty to develop the record, fully and
fairly, even where a claimant is represented by counsel. See Snead v. Barnhart, 360 F.3d 834, 838
(8th Cir. 2004). The ALJ is responsible for developing the record because the social security
hearings are non-adversarial. Id. 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).
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).
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 sedentary work.
(Tr. 384). The ALJ did not seek the testimony of a VE to support his RFC determination. This
matter was previously remanded for the purpose of addressing Plaintiff’s nonexertional limitations,
howver, on remand, the ALJ has still failed to address or discuss Plaintiff’s nonexertional
As was discussed previously by this Court, on July 26, 2007, Dr. David Hicks prepared a
Physical RFC Assessment for Plaintiff and this report indicated Plaintiff would occasionally have
limitations of climbing, balancing, stooping, kneeling, crouching, and crawling based on morbid
obesity. (Tr. 248-255). On August 17, 2007, Plaintiff’s treating physician, Dr. Dale Goins, prepared
an Obesity RFC Questionnaire and a Fibromyalgia RFC Questionnaire for Plaintiff and found
postural limitations in Plaintiff’s ability to twist, stoop, climb, crouch, and repetitive reaching
handling or fingering. (Tr. 279-280). Additionally, on November 9, 2007, Plaintiff underwent a
second Physical RFC Assessment from Dr. Jim Takach and his findings indicated Plaintiff retained
the ability to perform work activity at the sedentary level, along with postural limitations of
climbing, balancing, stooping, kneeling, crouching, and crawling. (Tr. 298-305).
On May 3, 2012, Dr. Dale Goins prepared a Lumbar Spine RFC Assessment which indicated
Plaintiff’s pain would frequently interfere with her attention and concentration, can never crouch or
climb ladders, has significant limitations in doing repetitive reaching, handling or fingering, and
found limitations on sitting and standing. (Tr. 651-654).
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).
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
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 15th day of July, 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
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