Rollins v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 21, 2017. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 4:15-cv-04097-BAB
NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration1
Teresa Rollins (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a final decision of the Commissioner of the Social Security Administration (“SSA”)
denying her claim for a period of disability, disability insurance benefits (“DIB”), and supplemental
security income (“SSI”) benefits under Titles II and XVI of the Social Security Act (“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).2 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 applications for DIB and SSI on March 12, 2010. (ECF No.
15, p. 316). In her applications, Plaintiff alleges being disabled due to diabetes, seizures, a heart
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to
be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
The docket numbers for this case are referenced by the designation “ECF No. ___.” The
transcript pages for this case are referenced by the designation “ECF No. ___, p. ___.”
condition, high blood pressure, and acid reflux. (ECF No. 15, p. 273). Plaintiff alleges an onset date
of December 26, 2009. (ECF No. 15, p. 315). These applications were denied initially and again
upon reconsideration. (ECF No. 15, pp. 123-129).
Thereafter, Plaintiff requested an administrative hearing on her denied applications, and this
hearing request was granted. (ECF No. 15, p. 149). Plaintiff’s first administrative hearing was held
on May 13, 2011, in Arkansas before Administrative Law Judge (“ALJ”) Walter Orr. (ECF No. 15,
pp. 45-62). Plaintiff, who appeared without the assistance of an attorney or other counsel, and
Vocational Expert (“VE”) Julia Crume testified at this hearing. Id. After this hearing, on July 6,
2011, the ALJ entered an unfavorable decision denying Plaintiff’s applications for DIB and SSI.
(ECF No. 15, pp. 102-14). The Appeals Council remanded the case to the ALJ on October 28, 2011,
for further consideration of Plaintiff’s RFC and evaluation of the opinions of consultative examiners
Dr. Cathy Word and Julia Wood. (ECF No. 15, pp. 120-22). Plaintiff’s second administrative
hearing was held on January 18, 2012, in Arkansas before ALJ Walter Orr. (ECF No. 15, pp. 63-97).
Plaintiff, who appeared without the assistance of an attorney or other counsel, VE Russell Bowden,
and psychological expert Betty Feir testified at this hearing. Id. After this hearing, on April 11,
2012, the ALJ entered an unfavorable decision denying Plaintiff’s applications for DIB And SSI.
(ECF No. 15, pp. 18-38). Plaintiff thereafter requested review by the Appeals Council, who denied
this request on August 6, 2012. (ECF No. 15, pp. 10-13).
Plaintiff subsequently filed an appeal with this Court. Rollins v. Colvin, No. 4:12-cv-04099,
2013 WL 3897771 (W.D. Ark. 2013). The April 11, 2012, decision of the ALJ was reversed and
remanded for failure to properly analyze Plaintiff’s subjective complaints in accordance with the
requirements of Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984).
administrative hearing was held on October 9, 2014, in Dallas North, Texas before ALJ Michael
Finnie. (ECF No. 15, pp. 829-61). Plaintiff was present and was represented by Greg Jones. Id.
Plaintiff and VE Susan Dobson testified at this hearing. Id. At the time of this hearing, Plaintiff was
forty years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c); 20 C.F.R.
§ 416.963(c). (ECF No. 15, p. 833). As for her level of education, Plaintiff completed the twelfth
After this hearing, on April 24, 2015, the ALJ entered an unfavorable decision denying
Plaintiff’s applications for DIB and SSI. (ECF No. 15, pp. 770-86). In this decision, the ALJ found
Plaintiff met the insured status requirements of the Act through March 31, 2014. (ECF No. 15, p.
775, Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”)
since December 26, 2009, her alleged onset date. (ECF No. 15, pp. 775-76, Finding 2). The ALJ
determined Plaintiff had the following severe impairments: seizure disorder, headache, diabetes with
neuropathy, irritable bowel syndrome, gastric esophageal reflux disease, hypertension, obstructive
sleep apnea, obesity, degenerative joint disease of the left knee, affective disorder, generalized
anxiety disorder, personality disorder, and post-traumatic stress disorder (“PTSD”). (ECF No. 15,
p. 776, Finding 3). Despite being severe, the ALJ determined these impairments did not meet or
medically equal the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P
of Part 404 (“Listings”). (ECF No. 15, pp. 776-77, Finding 4).
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (ECF No. 15,
pp. 777-84, 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:
a full range of light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except
that she can lift and/or carry 20 pounds occasionally, lift and/or carry 10 pounds
frequently, stand/walk for 6 hours in an 8-hour workday, and sit for 6 hours in an 8hour workday. The claimant must avoid exposure to hazardous moving machinery,
unprotected heights and commercial driving. The claimant has the ability to
understand, carry out and remember simple, routine tasks, with no more than
occasional contact with the general public.
The ALJ then determined Plaintiff was unable to perform any of her Past Relevant Work
(“PRW”). (ECF No. 15, p. 784, Finding 6). The VE testified at the administrative hearing regarding
this issue. (ECF No. 15, pp. 854-60). Based on Plaintiff’s age, education, work experience, and
RFC, the ALJ determined there were jobs existing in significant numbers in the national economy
Plaintiff could perform, such as a silver wrapper, which has a DOT code of 318.687-018, with
approximately one hundred seven thousand (107,000) jobs in the national economy, and
approximately three hundred (300) jobs in the state of Arkansas, as a cleaner, which has a DOT code
of 323.687-014, with approximately one hundred thirty-four thousand (134,000) jobs in the national
economy, and approximately two thousand two hundred (2,200) jobs in the state of Arkansas, and
as a locker room attendant, which has a DOT code of 358.677-014, with approximately eighteen
thousand(18,000) jobs in the national economy, and approximately two hundred (200) jobs in the
state of Arkansas. (ECF No. 15, pp. 784-85, Finding 10). Because jobs exist in significant numbers
in the national economy which Plaintiff can perform, the ALJ also determined Plaintiff had not been
under a disability, as defined by the Act, from December 26, 2009, through April 24, 2015, the date
of the ALJ’s decision. (ECF No. 15, p. 785), Finding 11).
Thereafter, on May 4, 2015, Plaintiff requested a review by the Appeals Council. (ECF No.
15, p. 799). The Appeals Council denied this request on August 19, 2015. (ECF No. 15, pp. 7654
69). On September 28, 2015, Plaintiff filed the present appeal with this Court. (ECF No. 1). The
Parties consented to the jurisdiction of this Court on September 28, 2015. (ECF No. 5). 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)
(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 to support 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), 1382c(a)(3)(D). A plaintiff must show
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), 1382c(a)(3)(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 there are other jobs in the national economy the claimant can perform.
see Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 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(a)(4)(v), 416.920(a)(4)(v).
In her appeal brief, Plaintiff raises three arguments for reversal: (1) the ALJ failed to consider
Plaintiff’s impairments in combination with regard to Listings 3.10, 9.00, 11.03, 11.04B, 12.02,
12.04, and 12.06; (2) the ALJ erred in discrediting the opinions of Dr. Goins and Dr. Parker, and ;
(3) the ALJ erred in discrediting Plaintiff by concluding Plaintiff retained the RFC to perform a
limited range of light work. (ECF No. 12). Upon review of these claims, this Court agrees with
Plaintiff’s second argument generally and finds the ALJ erred in his evaluation of the opinion
evidence in the record. Accordingly, this Court will only address this argument for reversal.
Generally, a treating physician's opinion is given more weight than other sources in a
disability proceeding. 20 C.F.R. § 404.1527(c)(2). Indeed, when the treating physician's opinion
is supported by proper medical testing, and is not inconsistent with other substantial evidence in the
record, the ALJ must give the opinion controlling weight. Id. “However, [a]n ALJ may discount
or even disregard the opinion of a treating physician where other medical assessments are supported
by better or more thorough medical evidence, or where a treating physician renders inconsistent
opinions that undermine the credibility of such opinions.” Wildman v. Astrue, 596 F.3d 959, 964
(8th Cir. 2010) (alteration in original) (internal quotation omitted). Ultimately, the ALJ must “give
good reasons” to explain the weight given the treating physician's opinion. 20 C.F.R. §
The ALJ discounted the opinion of one of Plaintiff’s treating physicians, Dr. Parker, for the
Dr. Parker failed to provide objective clinical or laboratory diagnostic findings that
support his assessment that [Plaintiff] can only perform less than sedentary exertional
activities, or would miss more than 3 workdays per month.
(ECF No. 15, p. 784). The form on which Dr. Parker provided his opinion did not prompt Dr. Parker
to provide any additional clinical or laboratory diagnostic information with his opinion, only that he
base his opinion, “on your examination and the medical records you considered.” (ECF No. 15, pp.
1314-17). Dr. Parker ordered an MRI of Plaintiff’s left knee on April 25, 2013. (ECF No. 15, p.
1353). The May 7, 2013, MRI revealed “abnormal appearance of the ACL with enlargement and
increased T2 signal,” and indicated “findings may relate to advanced mucoid degeneration,” and
“ACL tear with secondary to occult injury is not entirely excluded,” as well as small joint effusion.
(ECF No. 15, p. 1307). Dr. Parker reviewed the MRI findings with Plaintiff the following day, on
May 8, 2013, and referred her to Baptist Health Surgical and Orthopedic Clinic. (ECF No. 15, p.
1349). At Plaintiff’s orthopedic appointment on May 20, 2013, Dr. McLeod noted active painful
range of motion of Plaintiff’s left knee and noted her left knee flexion was only seventy degrees.
(ECF No. 15, p. 1292). The ALJ, however, determined “there are no treatment notes or reports of
medical sources to document any significantly decreased range of motion of her knee. . . .” (ECF
No. 15, p. 782). The ALJ, moreover, determined at step two of the sequential evaluation process that
Plaintiff’s degenerative joint disease of the left knee was a severe impairment. (ECF No. 15, p. 776).
When the ALJ broadly states that objective evidence does not exist, but can be found upon review,
this Court is unconvinced the ALJ carried out his duty to base his RFC determination on all relevant
evidence in the record.
The ALJ’s decision contains other instances where evidence in the record as a whole is
simply not acknowledged and examined. For example, the ALJ stated in his decision, “[Plaintiff]
underwent an EGD and stomach biopsy that revealed normal mucosa.” (ECF No. 15, pp. 779, 782).
Upon review of the evidence, one biopsy was “positive for numerous identifiable H. Pylori-like
organisms,” and another was “positive for focal intestinal-type metaplasia.” The ALJ did not
elaborate further on Plaintiff’s abdominal or gastrointestinal symptoms elsewhere in his decision,
except to remark that “no treating physicial has considered the [IBS] or [GERD] symptoms to be
significant enough to warrant further diagnostic medical tests,” but nevertheless identified Plaintiff’s
irritable bowel syndrome and gastric esophageal reflux disease as severe impairments at step two of
the sequential evaluation process. (ECF No. 15, p. 776). A CT scan of Plaintiff’s abdomen and
pelvis conducted in connection with Plaintiff’s EGD revealed a 4.3 centimeter cyst on her right ovary
and mild diffuse fatty infiltration of the liver, which the ALJ also did not discuss in connection with
Plaintiff’s abdominal symptoms. While a “deficiency in opinion-writing is not a sufficient reason
to set aside an ALJ’s finding where the deficiency [has] no practical effect on the outcome of the
case,” inaccuracies, incomplete analyses, and unresolved conflicts of evidence can serve as a basis
for remand. Reeder v. Apfel, 214 F.3d 984, 988 (8th Cir. 2000); Boyd v. Sullivan, 960 F.2d 733, 736
(8th Cir. 1992).
The record contains the opinions of multiple consultative examiners, but the ALJ did not
discuss the weight given to their opinions. The ALJ’s analysis of the consultative examiners
opinions essentially amounts to a simple, and sometimes partial, recitation of their content. For
example, the ALJ summarized the opinion of Dr. Cathy Word as follows:
Dr. Cathy Word performed a psychological consultative examination on August 6,
2010. [Plaintiff] reported complaints of anxiety and depression, history of abusive
relationships, and no history of psychiatric treatment or use of psychotropic
medications. She stated that she could maintain her own personal hygiene, prepare
meals and care for two minor daughters. Dr. Word diagnosed [Plaintiff] with major
depressive disorder - single episode, moderate, and posttraumatic stress disorder
related to domestic violence. She assigned a Global Assessment of Functioning
(“GAF”) score of 45-55. Dr. Word opined that [Plaintiff] displayed moderate
interference with functioning and impaired concentration. She stated that [Plaintiff]
might have difficulty with cognitive demands of work, and have difficulty
completing tasks in acceptable timeframe.
(ECF No. 15, pp. 780-81) (internal citation omitted). Dr. Word’s opinion also contained information
that Plaintiff “writes a list and sends her daughter to the store because of her avoidance activities,”
and “no longer socializes and has stopped going to church” and “can prepare simple meals but
mostly depends on her sister or daughter to prepare them,”despite the ALJ’s reliance on other
descriptions of Plaintiff’s ADLs as one part of finding Plaintiff’s subjective complaints less than
credible. (ECF No. 15, pp 548, 783). Dr. Word also opined: “[Plaintiff] will likely have anger
outbursts if stressors are too great which would impair her ability to work will with others.” (ECF
No. 15, pp. 549). The ALJ’s consideration of Dr. Word’s opinion, however, does not indicate the
weight given to the examiner’s opinion in whole or in part; and while the ALJ’s RFC determination
did limit Plaintiff to unskilled work with occasional contact with the general public, the RFC does
not contain any limitation with regard to Plaintiff’s expected interaction with supervisors and coworkers. (ECF No. 15, pp. 777-78). The ALJ’s failure to analyze this issue is particularly troubling
considering Plaintiff’s testimony at her second administrative hearing on January 18, 2012. Plaintiff
testified as follows:
All right. Well, where did you go to work in August of last year?
Yea. I worked there for, like, three weeks, I think.
And then I went to the bakery. And I worked there for two weeks.
But it – the Columbia Sewing, I, I was term [phonetic] for attitude.
And then at Government – I mean, at the bakery, I was term because
I, I walked off the, the line to go choke a girl because she –
– because she was picking on me.
(ECF No. 15, p. 87). Plaintiff also indicated she was unable to find anyone willing to help her attend
her hearing that day and had hitchhiked from Hope, Arkansas to a truck stop in Mandeville,
Arkansas where she was able to find someone to give her a ride to the hearing office. Id. at 88.
Without knowing the weight assigned to Dr. Word’s opinion and without analysis of the evidence
in the record which indicated Plaintiff suffered behavioral problems at work, we cannot say the ALJ
based his RFC determination on the evidence in the record as a whole.
The ALJ also failed to discuss the weight given in whole or in part to the opinion of Dr. Julia
Wood, another consultative examiner. (ECF No. 15, pp. 781). The ALJ noted that Dr. Wood’s
opinion was that Plaintiff’s “ability to relate to others including supervisors and coworkers” was
“moderately to markedly impaired.” (ECF No. 15, pp. 583-84, 781-82). Dr. Wood wrote in her
[Plaintiff] was unable to interact appropriately and displayed poor social skills. She
was generally hostile throughout and presented as quite entitled. For example, she
called early in the day and told me (did not ask) that she would be coming early so
I would need to see her early. When I told her that was not necessarily going to
happen but she was welcome to come early and I would squeeze her in if possible,
she hung up and showed up at her appointment time.
(ECF No. 15, p. 781). Again, the RFC does not contain any limitation with regard to Plaintiff’s
expected interaction with supervisors and co-workers, and without knowing the weight assigned to
Dr. Wood’s opinion, we cannot say the ALJ based his RFC determination on the evidence in the
record as a whole.
The ALJ also recited the findings of Dr. David Grant, but again failed to discuss the weight
given in whole or in part to his opinion. (ECF No. 15, pp. 781). The ALJ noted Dr. Grant’s
suspicion that Plaintiff was malingering during her consultative examination as one reason for
determining Plaintiff’s subjective complaints were less than credible. (ECF No. 15, p. 783). The
ALJ summarized Dr. Grant’s findings, in part, by stating, “He opined that [Plaintiff] was able to
effectively cope with mental/cognitive demands of basic work-like tasks, displayed adequate
concentration and persistence, and was able to complete tasks in acceptable time frame.” (ECF No.
15, p. 781). The ALJ, however, did not note that Dr. Grant’s opinion with regard to Plaintiff’s ability
to cope with the mental and cognitive demands of basic work-like tasks and to concentrate and
persist on those tasks, conflicted with the opinions of Dr. Word and Dr. Wood. The ALJ never
discussed the weight given to Dr. Grant’s opinion, and never resolved its conflict with the other
consultative examiners opinions in the record, despite evidence the ALJ relied on Dr. Grant’s
opinion at least in part.
I also find the ALJ’s dismissal of the third-party non-medical opinion evidence in the record
troubling. The Social Security regulations specifically permit the ALJ to consider evidence from
“other sources” which would not be considered an “acceptable medical source” for purposes of
establishing the existence of a medically determinable impairment. 20 C.F.R. §§ 404.1513(d),
416.913(d). Information from non-medical sources such as friends and family members “may
provide insight into the severity of the impairment(s) and how it affects the individual’s ability to
function.” Social Security Ruling (SSR) 06-03p (Aug. 9, 2006). The ALJ dismissed the affidavit of
Plaintiff’s former spouse, Jerry Rollins, because it “provides little indication or evidence of any work
related limitations.” The ALJ, however, recognized Plaintiff’s affidavit evinced Plaintiff’s suffering
from mood swings, seizures, and blackouts. (ECF No. 15, p. 783). While Mr. Rollins’ affidavit is
short in length and broad in its content, its content is relevant to Plaintiff’s severe impairments, work
related limitations, and the ALJ’s RFC determination. Similarly, the ALJ “acknowledge[d] Ms.
[Christina] Casas’ affidavit, but note[d] the limited duration of their relationship, which begun well
after the alleged onset date.” While, the ALJ “acknowledged” the opinion, his dismissal based on
the date Plaintiff and Ms. Casas became friends is not a good reason, and leaves this Court
unconvinced the ALJ considered Ms. Casas’ opinion. Although Ms. Casas’ opinion stated their
friendship began after Plaintiff’s alleged onset date, the date their friendship began remains solidly
within the relevant period for which an award of benefits could be granted. (ECF No. 15, p. 1414).
We have long held that “it is the ALJ’s function to resolve conflicts among the opinions of
various treating and examining physicians.” Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir.
2001). While a “deficiency in opinion-writing is not a sufficient reason to set aside an ALJ’s finding
where the deficiency [has] no practical effect on the outcome of the case,” inaccuracies, incomplete
analyses, and unresolved conflicts of evidence can serve as a basis for remand. Reeder v. Apfel, 214
F.3d 984, 988 (8th Cir. 2000); Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir. 1992). In the present
case, I find the inaccuracies, incomplete analyses, and unresolved conflicts of evidence, had a
practical effect on the outcome of the case. Accordingly, because the ALJ failed to resolve conflicts
among the various physicians’ opinions, failed to provide good reasons for dismissing the nonmedical opinion evidence, and failed to identify the existence of objective medical evidence in the
record, especially as it related to a treating physician’s opinion and the ALJ’s ultimate RFC
determination, this case must be reversed and remanded.
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.3 A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 21st day of February 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
This remand is ordered solely for the purpose of permitting the ALJ the opportunity to
comply with the requirements that he evaluate all of the evidence in the record, explain the
weight given to the opinion evidence in the record, and resolve the conflicts between same. No
part of this remand should be interpreted as an instruction that disability benefits be awarded.
Upon remand, the ALJ should further evaluate the evidence and make a disability determination,
subject to this Court’s later review.
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