Farris v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 21, 2011. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

MELVIN L. FARRIS

PLAINTIFF

CIVIL NO. 10-5060

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Melvin L. Farris, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claims for a period of disability and disability insurance benefits
(DIB) under the provisions of Title II of the Social Security Act (Act). In this judicial review,
the Court must determine whether there is substantial evidence in the administrative record to
support the Commissioner's decision. See 42 U.S.C. § 405(g).
I.

Procedural Background:
Plaintiff protectively filed his current application for DIB on April 24, 2007, alleging an

inability to work since February 1, 2007, due to an upper back injury, back problems following
a cervical fusion, a bilateral shoulder injury, a neck injury and left arm pain. (Tr. 88-90). An
administrative hearing was held on February 3, 2009, at which Plaintiff appeared with counsel
and testified. (Tr. 17-42).
By written decision dated June 1, 2009, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 50).

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Specifically, the ALJ found Plaintiff had the following severe impairments: status post cervical
fusion. However, after reviewing all of the evidence presented, she determined that Plaintiff’s
impairments did not meet or equal the level of severity of any impairment listed in the Listing
of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 50). The ALJ found
Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) except the claimant can
perform no more than minimal lifting with dominant right hand; he cannot
perform overhead reaching with his right arm; he can only occasional (sic)
reaching (sic) in all other directions with his right arm; and can only perform
occasional overhead reaching with his left arm.
(Tr. 51). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a sorter, an inspector, and a cashier. (Tr. 53).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on February 16, 2010. (Tr. 1-4). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8,9).
II.

Applicable Law:
This Court's role is to determine whether the Commissioner's findings are supported by

substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner's decision. The ALJ's decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d
964, 966 (8th Cir. 2003). 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
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in the record that would have supported a contrary outcome, or because the Court would have
decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other
words, 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. McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A),
1382c(a)(3)(A). The Act defines “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 disability, not simply his impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. § 404.1520. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
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in light of his residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42
(8th Cir. 1982); 20 C.F.R. § 404.1520.
III.

Discussion:
Of particular concern to the undersigned is the ALJ’s RFC determination. RFC is the

most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). A disability
claimant has the burden of establishing his or her RFC. See Masterson v. Barnhart, 363 F.3d 731,
737 (8th Cir.2004). “The ALJ determines a claimant’s RFC based on all relevant evidence in
the record, including medical records, observations of treating physicians and others, and the
claimant’s own descriptions of his or her limitations.” Eichelberger v. Barnhart, 390 F.3d 584,
591 (8th Cir. 2004); Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). Limitations
resulting from symptoms such as pain are also factored into the assessment. 20 C.F.R. §
404.1545(a)(3). The United States Court of Appeals for the Eighth Circuit has held that a
“claimant’s residual functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700,
704 (8th Cir. 2001). Therefore, an ALJ’s determination concerning a claimant’s RFC must be
supported by medical evidence that addresses the claimant’s ability to function in the
workplace.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003).
In the present case, the ALJ found that despite Plaintiff’s severe impairments, he had the
RFC to perform light work with limitations. (Tr. 51). In making this determination, the ALJ
gave significant weight to Dr. Kyle’s, one of Plaintiff’s treating physician’s, July 2007 opinion
that Plaintiff had responded well to treatment and had shown significant improvement. (Tr.
249). The ALJ also noted that Dr. Alice M. Davidson, a non-examining medical consultant,
completed a RFC assessment, dated November 13, 2007, opining that Plaintiff could perform
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light work. (Tr. 52, 252-259). What is troubling to the undersigned is that the ALJ failed to
address Plaintiff’s need for a second cervical surgery on June 13, 2008, as well as the follow up
notes dated January 28, 2008, and September 12, 2008, from Dr. Cyril A. Raben, Plaintiff’s
treating physician, indicating that Plaintiff was to continue off of work. (Tr. 272, 321). A review
of the record further reveals that there is no RFC assessment dated subsequent to this second
surgery. As it appears Plaintiff continued to have ongoing pain and limitations in his neck and
shoulder, the Court believes remand is necessary for the ALJ to more fully and fairly develop the
record regarding these impairments.
On remand, the ALJ is directed to address interrogatories to the physicians who have
evaluated and/or treated Plaintiff -- including Drs. Cyril A. Raben and John P. Park-- asking the
physicians to review Plaintiff's medical records; to complete a RFC assessment regarding
Plaintiff's capabilities during the time period in question; and to give the objective basis for their
opinions so that an informed decision can be made regarding Plaintiff's ability to perform basic
work activities on a sustained basis. Chitwood v. Bowen, 788 F.2d 1376, 1378 n.1 (8th Cir.
1986); Dozier v. Heckler, 754 F.2d 274, 276 (8th Cir. 1985). If further development of the
record on the issue of Plaintiff's physical RFC is necessary, the ALJ should also order a
consultative general physical examination, in which, the consultative examiner should be asked
to review the medical evidence of record, perform examinations and appropriate testing needed
to properly diagnosis Plaintiff's condition(s), and complete a medical assessment of Plaintiff's
abilities to perform work related activities. See 20 C.F.R. § 404.1517.

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With this evidence, the ALJ should then re-evaluate Plaintiff's RFC and specifically list
in a hypothetical to a vocational expert any limitations that are indicated in the RFC assessments
and supported by the evidence.
IV.

Conclusion:
Accordingly, we conclude that the ALJ’s decision is not supported by substantial

evidence, and therefore, the denial of benefits to the Plaintiff should be reversed and this matter
should be remanded to the Commissioner for further consideration pursuant to sentence four of
42 U.S.C. § 405(g).
DATED this 21st day of June 2011.

/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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