Pace v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 29, 2014. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CYNTHIA DELOIS PACE
Civil No. 4:13-cv-04072
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Cynthia Delois Pace (“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 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 post-judgment proceedings. ECF No. 8.1 Pursuant to this authority, the Court issues this
memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed an application for DIB on October 4, 2008. (Tr. 186-189).
Plaintiff alleged she was disabled due to her back, shoulder, eyesight, and heart problems. (Tr. 208).
Plaintiff alleged an onset date of October 7, 2008. (Tr. 208). This application was denied initially
and again upon reconsideration. (Tr. 93-95, 98-99). Thereafter, Plaintiff requested an administrative
hearing on her application and this hearing request was granted. (Tr. 100).
Plaintiff’s initial administrative hearing was held on January 12, 2011. (Tr. 22-32).
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.”
Following the hearing, on February 23, 2011, the ALJ entered an unfavorable decision denying
Plaintiff’s application for DIB. (Tr. 55-84). On May 1, 2012, the Appeals Council remanded the
decision tho the ALJ for further proceedings. (Tr. 89-91).
Plaintiff’s second administrative hearing was held on December 5, 2012. (Tr. 33-49).
Plaintiff was present and was represented by counsel, Michael Angel, at this hearing. Id. At the time
of this hearing, Plaintiff was fifty-seven (57) years old, which is defined as a “person of advanced
age” under 20 C.F.R. § 404.1563(e), and had an eleventh grade education.
On December 21, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB. (Tr. 10-17). In this decision, the ALJ determined Plaintiff met the insured
status requirements of the Act through December 31, 2012. (Tr. 12, Finding 1). The ALJ also
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since October 7, 2008.
(Tr. 12, Finding 2).
The ALJ determined Plaintiff had the severe impairments of history of left shoulder and right
shoulder tendinopathy. (Tr. 12, Finding 3). The ALJ then determined Plaintiff’s impairments did
not meet or medically equal the requirements of any of the Listing of Impairments in Appendix 1 to
Subpart P of Regulations No. 4 (“Listings”). (Tr. 15, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 15-16). First, the ALJ indicated he 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 light work except she can only occasionally reach overhead. (Tr. 15, Finding
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17, Finding 6). The
ALJ found Plaintiff able to perform her PRW as a janitor. Id. The ALJ then determined Plaintiff
had not been under a “disability,” as defined by the Act, from October 7, 2008 through the date of
his decision. (Tr. 17, Finding 7).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 5). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On August 1, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on August 20, 2013. ECF No. 8. Both Parties have filed appeal
briefs. ECF Nos. 14, 15. 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,
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. 14, Pg. 7-15. Specifically, Plaintiff claims the ALJ
erred: (1) in relying upon VE testimony that conflicts with the DOT, (2) in failing to properly review
Plaintiff’s alleged severe impairments, and (3) in failing to fully evaluate Plaintiff’s mental
impairment as required by the Appeals Council remand. Id. In response, the Defendant argues the
ALJ did not err in any of his findings. ECF No. 15. Because this Court finds the ALJ erred in failing
to properly evaluate Plaintiff’s mental impairment and prepare a Psychiatric Review Technique
analysis, this Court will only address this issue.
Following Plaintiff’s December 5, 2012 hearing, ALJ determined Plaintiff was not disabled.
Subsequently, the Appeal’s Counsel reversed ALJ decision and issued a Remand Order on May 1,
2012. (Tr. 89-91). The Remand Order assigned the case to a new ALJ and instructed the new ALJ
to further evaluate claimant’s mental impairments. Id. Specifically, the Order instructed the ALJ
to “evaluate the claimant’s mental impairments in accordance with the special technique described
in 20 C.F.R § 404.1520a, documenting application of the technique in the decision by providing
specific findings and appropriate rationale for each of the functional areas in 20 C.F.R.
§404.1520a(c).” (Tr. 90).
A Psychiatric Review Technique analysis is required to be conducted and documented at each
level of the review process, including the ALJ level. See 20 C.F.R. § 404.1520a(a)-(e). This
involves a determination of whether there is a mental impairment followed by a rating of the degree
of functional limitation resulting from the mental impairment. This must be conducted at all levels
of the application process, beginning with the initial and reconsideration levels. Id. At these levels,
the Psychiatric Review Technique must be documented by completion of a standard form. The
Psychiatric Review Technique must also be conducted and documented at the ALJ and Appeals
Council levels; however, at these levels, it is permissible for the analysis to be included within the
written decision such that the use of a written form is not required. Id.
The ALJ did not properly apply the techniques described in 20 C.F.R. §404.1520a. The
ALJ’s decision included no specific findings or rationale for the functional areas described in 20
C.F.R. §404.1520a(c). This section requires the ALJ to rate the degree of claimant’s functional
limitation in the following four broad functional areas: (1) Activities of daily living; (2) Social
functions; (3) Concentration, persistence, or pace; and (4) Episodes of decompensation. Instead,
the ALJ gave the following cursory explanation:
“Because the claimant’s medically determinable mental impairment causes no more than
‘mild’ limitation in any of the first three function functional areas and ‘no’ episodes of
decompensation which have been of extended duration of the forth area, it is non-severe.”
The ALJ did not prepare or utilize a Psychiatric Review Technique. This failure was error.
This matter is remanded for further review because no Psychiatric Review Technique analysis was
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 29th day of April 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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