Denton v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 26, 2011. (src)

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

GEORGIA G. DENTON

PLAINTIFF

v.

CIVIL NO. 10-5121

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Georgia G. Denton, 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 her claim for a period of disability and disability insurance benefits
(DIB) under the provisions of Title XVI 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 her current application for DIB on March 13, 2008, alleging

an inability to work since March 1, 2008, due to degenerative disc disease, arthritis, neck pain,
status post cervical fusion at C4-5 and C5-6 with a hip graft, status post ulna and radius fracture
with open reduction and internal fixation, fracture of the breast bone, gastroesophageal reflux
disease, hypothyroidisn, hyperlipidemia, schizophrenia, borderline personality disorder,

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depressive disorder, severe anxiety and post traumatic stress disorder. (Tr. 116-117, 133). An
administrative hearing was held on December 2, 2009, at which Plaintiff appeared with counsel
and testified. (Tr. 11-33).
By written decision dated January 20, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 41).
Specifically, the ALJ found Plaintiff had the following severe impairments: poly-substance
abuse, a depressive disorder, a personality disorder, and degenerative disc disease. However,
after reviewing all of the evidence presented, he 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. 42). The ALJ found Plaintiff retained the
residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a), with the ability to
occasionally lift/carry up to 10 pounds and frequently lift/carry less than 10
pounds. She is able to sit for 6 hours and stand/walk for 2 hours in an 8-hour
workday. She can frequently climb stairs, ramps, and balance. She can
occasionally climb ropes and ladders, stoop, crouch, kneel, and crawl. She can
do work in which interpersonal contact is incidental to the work performed,
complexity of tasks is learned and performed by rote, with few variables and little
judgment required. Supervision required is simple, direct, and concrete.
(Tr. 44). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a production worker, an inspector and an assembler. (Tr. 49).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence, denied that request on April 23, 2010. (Tr. 1-5).
Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant

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to the consent of the parties. (Doc. 5). Both parties have filed appeal briefs, and the case is now
ready for decision. (Docs. 7, 8).
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
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 her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her 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),
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1382(3)(c). A Plaintiff must show that her disability, not simply her 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 her 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 her 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
in light of her 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
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“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 Plaintiff had the following severe impairments: polysubstance abuse, a depressive disorder, a personality disorder, and degenerative disc disease.
The ALJ also determined that even with these severe impairments, Plaintiff was able to perform
sedentary work with some limitations. After reviewing the entire record, the Court is troubled
by the ALJ’s assessment of Plaintiff’s physical impairments.
In determining Plaintiff’s RFC, the ALJ noted that Plaintiff was involved in a motor
vehicle accident in February of 2009. (Tr. 46, 413). The medical record revealed that after this
accident, Plaintiff complained of neck pain, and right arm and hand pain and numbness. (Tr.
336). At the administrative hearing in December of 2009, Plaintiff testified that she had
difficulty using her dominant right hand and arm. (Tr. 17). Plaintiff testified that due to her arm
and neck pain, she needed help with showering, combing her hair, and dressing. Plaintiff
indicated she was unable to raise either arm above shoulder level due to her neck pain. Due to
the fact that the most recent RFC relied upon by the ALJ was completed in July 2008, almost
seven months prior to Plaintiff’s most recent motor vehicle accident; and that the evidence
revealed Plaintiff had increased difficulty with her dominant right arm and hand and neck pain
as a result of a motor vehicle accident in February of 2009, the Court believes remand is
necessary for the ALJ to more fully and fairly develop the record regarding Plaintiff’s neck, and
right arm and hand impairments. It is also noteworthy that the vocational expert testified that
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the jobs he determined Plaintiff could perform could not be performed if Plaintiff could only
occasionally use her right dominant arm and hand for reaching, grasping, or fingering. (Tr. 31).
On remand, the ALJ is directed to obtain a RFC assessment from a physician who has
evaluated and/or treated Plaintiff, asking the physician 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 his/her opinion so that an informed decision can be made
regarding Plaintiff's ability to perform basic work activities on a sustained basis. As Plaintiff’s
primary treating physician, Dr. Janelle Potts, indicated that she no longer completed disability
forms, the ALJ may need to 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.
We further note that the medical evidence is somewhat ambiguous with regard to
Plaintiff's mental limitations and her mental RFC. On remand, the Court directs the ALJ to
obtain a mental RFC assessment from a treating or examining physician.
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
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should be remanded to the Commissioner for further consideration pursuant to sentence four of
42 U.S.C. § 405(g).
DATED this 26th day of August 2011.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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