Zitano v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 15, 2017. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 4:16-cv-04031
NANCY A. BERRYHILL
Commissioner, Social Security Administration
Danna Zitano (“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”), Supplemental Security Income (“SSI”), and a period of
disability under Titles II and 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 protectively filed an application for DIB and SSI on June 4, 2013. (Tr. 37). Plaintiff
alleged she was disabled due to due to hepatitis C, headaches, fatigue, high blood pressure, sleep
issues, cervical nerve damage, and injuries to her left shoulder, elbow, hip, and knee. (Tr. 181).
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.”
Plaintiff alleged an onset date of September 15, 2011. (Tr. 37). These applications were denied
initially and again upon reconsideration. (Tr. 37, 81-100, 159-164). Thereafter, Plaintiff requested
an administrative hearing on her applications and this hearing request was granted. (Tr. 111).
Plaintiff’s administrative hearing was held on October 21, 2014. (Tr. 54-80). Plaintiff was
present and was represented by Greg Giles at this hearing. Id. Plaintiff and Vocational Expert
(“VE”) Susan Johnson testified at this hearing. Id. At the time of this hearing, Plaintiff was fiftythree (53) years old and had completed the eleventh grade. (Tr. 63).
On January 29, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI. (Tr. 37-49). In this decision, the ALJ determined Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since June 14, 2013. (Tr. 39, Finding 1). The ALJ also determined
Plaintiff had the severe impairment of degenerative disc disease of the cervical spine with
radiculopathy, and multiple trauma with fracture of her lower limb and mild residual lower extremity
effects. (Tr. 40, Finding 2). 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. 44, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 44-48). 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 the full range of light work. (Tr. 44-45, Finding 4).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 48, Finding 5). The
ALJ found Plaintiff was capable of performing her PRW as a cashier. Id. Given this, the ALJ
determined Plaintiff had not been under a disability as defined in the Act since June 14, 2013. (Tr.
49, Finding 6).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 33). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 1-7). On April 13, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on April 14, 2016. ECF No. 5. Both Parties have filed
appeal briefs. ECF Nos. 11, 13. 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. 11, Pg. 4-19. Specifically, Plaintiff claims the ALJ
erred: (1) in failing to find Plaintiff met a Listing, (2) in the RFC determination of Plaintiff, and (3)
in failing to give proper treatment to the opinions of Plaintiff’s treating physician. Id. In response,
the Defendant argues the ALJ did not err in any of her findings. ECF No. 13. Because this Court
finds the ALJ erred in the treatment of the opinions of a treating physician, this Court will only
address this issue.
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
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 had been treated by Dr. Michael Young, of the Prescott Family Clinic, since
December 9, 2013. (Tr. 417-424). On September 23, 2014, Dr. Young prepared a medical source
statement. (Tr. 292-296). In this statement, Dr. Young stated Plaintiff could lift 10 pounds
occasionally, no weight frequently, stand or walk less than two hours during an 8-hour workday and
sit with normal breaks for about three hours out of an 8-hour workday. Id. Dr. Young also indicated
Plaintiff could not do a full time competitive job that required activity on a sustained basis and
would miss more than three times a month because of impairments. Id.
The ALJ gave no significant weight to Dr. Young’s opinions. (Tr. 47-48). In making this
determination, the ALJ found Dr. Young answered “yes” to the question that asks if Plaintiff can do
a full time competitive job that requires activity on a sustained basis thus indicating Plaintiff can
sustain work in a competitive work environment. Id. The ALJ’s reasoning in this regard is wrong.
In fact, Dr. Young found Plaintiff could not do a full time competitive job that required activity on
a sustained basis.
The ALJ has 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 an ALJ determines 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 ALJ erred in discounting Dr. Young’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 ALJ failed to properly analyze the opinions of Plaintiff’s treating physician. Because
the ALJ did not properly review the opinions of Plaintiff’s treating physician, this case should be
reversed and remanded for proper review and analysis of these opinions.
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 May 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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