Brown v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on December 22, 2014. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 4:13-cv-04098
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Marla Brown (“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
Supplemental Security Income (“SSI”) 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.
Plaintiff protectively filed her SSI application on January 11, 2010. (Tr. 11, 192-195).
Plaintiff alleges being disabled due to the following: bipolar disorder, arthritis, and memory
problems. (Tr. 217). Plaintiff alleges an onset date of September 30, 2007. (Tr. 11, 192). This
application was denied initially and again upon reconsideration. (Tr. 63-64).
Thereafter, on July 21, 2010, Plaintiff requested an administrative hearing on her application.
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.”
(Tr. 78-79). This hearing request was granted. (Tr. 88). Plaintiff’s administrative hearing was held
on March 10, 2011. (Tr. 58-62). At this hearing, the ALJ determined he had not received all of
Plaintiff’s medical records, and he then scheduled a second hearing. Id.
Plaintiff’s second administrative hearing was held on August 29, 2012 in Texarkana,
Arkansas. (Tr. 29-57). Plaintiff was present at this hearing and was represented by Greg Giles. Id.
Plaintiff, Vocational Expert (“VE”) Ms. Pomerov, Medical Expert (“ME1") Dr. Murphy, and
Medical Expert (“ME2") Dr. Smith testified at this hearing.2 Id. During this hearing, Plaintiff
testified she was fifty (50) years old, which is defined as a “person closely approaching advanced
age” under 20 C.F.R. § 416.963(d) (2008). (Tr. 37). Plaintiff also testified she had only completed
the eleventh grade in high school but had obtained a CNA license. Id.
On September 15, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s
application for SSI. (Tr. 8-21). In this decision, the ALJ found Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since January 11, 2010, her application date. (Tr. 13, Finding
1). The ALJ determined Plaintiff had the following severe impairments: obesity, a history of renal
insufficiency and renal disease, hypothyroidism, status post pacemaker, diabetes mellitus, and an
affective disorder. (Tr. 13, Finding 2). The ALJ 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. 13-14, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 14-19, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
The first names of Ms. Pomerov, Dr. Murphy, and Dr. Smith were not included in the
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to perform the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform the following as defined in
20 CFR 416.967(b): from the alleged onset date to June, 2011, the claimant could
perform medium exertion lifting 50 lbs occasionally and 25 lbs frequently, and from
June, 2011 to the present, the claimant could perform light exertion lifting 20 lbs
occasionally and 10 lbs frequently. The claimant could stand/walk for up to six hours
a day, sit six hours per day respectively, and could understand simple and detailed
instructions and tasks and can [have] incidental contact with the public.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was
unable to perform any of her PRW. (Tr. 19, Finding 5). The ALJ then determined whether Plaintiff
retained the capacity to perform other work existing in significant numbers in the national economy.
(Tr. 20-21, Finding 9). The VE testified at the administrative hearing on August 29, 2012 regarding
this issue. Id. Based upon that testimony, the ALJ determined Plaintiff retains the capacity to
perform work as a the following: (1) marker (light, unskilled) with 100,000 such jobs in the United
States, 1,000 in Texas, and 700 in Arkansas; (2) shirt presser (light, unskilled) with 660,000 such
jobs in the United States, 1,100 in Texas, and 700 in Arkansas; and (3) garment sorter (unskilled)
with 160,000 such jobs in the United States, 2,000 in Texas, and 700 in Arkansas. (Tr. 20). Because
Plaintiff retained the capacity to perform this other work, the ALJ determined she was not disabled
from her alleged onset date of January 11, 2010 (date her application was filed) through the date of
the ALJ’s decision or through September 15, 2012. (Tr. 21, Finding 10).
Thereafter, on September 28, 2012, Plaintiff requested the Appeals Council’s review of the
ALJ’s unfavorable decision. (Tr. 28). On October 1, 2013, the Appeals Council declined to review
this unfavorable decision. (Tr. 1-3). On October 22, 2013, Plaintiff filed the present appeal. ECF
No. 1. The Parties consented to the jurisdiction of this Court on October 22, 2013. ECF No. 5.
Both Parties have filed appeal briefs. ECF Nos. 11-12. This case is now ready for decision.
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)
(2010); 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 raises the following four arguments for reversal: (1) the ALJ
erred in finding her impairments do not meet the requirements of the Listings; (2) the ALJ erred in
discounting the opinion of her treating physician; (3) the ALJ erred in his RFC determination; and
(4) the ALJ erred in failing to submit a proper hypothetical to the VE. ECF No. 11 at 1-21. Because
the Court finds the ALJ erred in failing to properly consider the opinions of Plaintiff’s treating
physician, the Court will only consider Plaintiff’s second argument for reversal.
Plaintiff’s treating physician is Dr. L.J. Parker, M.D. Dr. Parker has been treating Plaintiff
since 2010. (Tr. 581-586, 591-604, 733-740, 1005-1012). On March 17, 2011, Dr. Parker
completed an RFC evaluation report wherein he found Plaintiff suffered from extreme work
limitations, including requiring “complete freedom to rest frequently without restriction,” being
limited to lifting only 5 to 10 pounds, and being limited to carrying only 5 to 10 pounds. (Tr. 582586).
With his RFC assessment, the ALJ discounted Dr. Parker’s findings. (Tr. 14-19). In his
decision to reject Dr. Parker’s findings, the ALJ provided little analysis: “The undersigned also
rejects Exhibit 22F, in which Dr. Parker stated that the claimant needs to have complete freedom to
rest frequently throughout the day, as not supported by the evidence as a whole, including physical
exams or treatment records. Dr. Parker cites joint pain as the basis, this is a symptom not supported
by the objective evidence of 5/5 muscle strength. More weight is given to the independent medical
expert Dr. Murphy who reviewed the entire record and cited impairments.” (Tr. 18).
Noticeably absent, apart from considering his finding that Plaintiff requires this “complete
freedom,” the ALJ did not state any reason for discounting Dr. Parker’s other findings, including his
stated lifting and carrying restrictions. (Tr. 18). Further, the only basis the ALJ provided for
discounting Plaintiff’s need for “complete freedom to rest” was that it was not supported “by the
evidence as a whole,” including the finding of “5/5 muscle strength.” Id. Because Dr. Parker is a
treating source, this analysis is simply not sufficient. See 20 C.F.R. § 404.1527(d)(2) (2012). See
also Tiley v. Astrue, 580 F.3d 675, 680 (8th Cir. 2009) (holding “[t]he regulations require the ALJ
to ‘always give good reasons’ for the weight afforded to the treating physician’s opinion”). Thus,
this case must be reversed and remanded for further consideration of Dr. Parker’s findings.
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 22nd day of December 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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