Cortez v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 5, 2012. (adw)

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

MARIA IDALIA CORTEZ

PLAINTIFF

v.

CIVIL NO. 10-5205

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Maria Idalia Cortez, 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 claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and 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 applications for DIB and SSI on December 5, 2007,

alleging an inability to work since July 7, 2006, due to fibromyalgia and depression. (Tr. 121124, 127-129, 136). An administrative hearing was held on August 5, 2009, at which Plaintiff
appeared with counsel and testified. (Tr. 44-68).
By written decision dated December 29, 2009, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.

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78). Specifically, the ALJ found Plaintiff had the following severe impairments: fibromyalgia
and depression. 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. 79). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
perform less than the full range of light work as defined in 20 CFR 404.1567(b)
and 416.967(b). She can frequently climb stairs, balance, crouch, crawl, kneel,
stoop, bend. She can occasionally climb ladders, ropes, and scaffolds.
(Tr. 80). With the help of a vocational expert, the ALJ determined Plaintiff could perform her
past relevant work as a convenience store clerk, a hand packager, and a housekeeper.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on September 30, 2010. (Tr. 1-3). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 6).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 13, 14).
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
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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. 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 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),
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, 416.920. Only
if the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work

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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, 416.920.
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 making the RFC determination that Plaintiff could perform light work, the ALJ stated
that she considered and essentially concurred with the opinions of the state agency consultants
who provided assessments at the initial and reconsideration levels. (Tr. 83). A review of the
record reveals that on March 10, 2008, Dr. Jerry Thomas, a non-examining medical consultant,
opined that Plaintiff’s physical impairments were not severe. (Tr. 245). On May 20, 2008, Dr.

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Robert Redd opined that Plaintiff’s physical impairments were not severe. (Tr. 264). The record
is void of any other opinion from a medical professional regarding Plaintiff’s capabilities.
After reviewing the record, it is clear that Plaintiff has been diagnosed with fibromyalgia
and that Plaintiff complained of limitations due to this impairment. (Tr. 285-286). As there is
no medical opinion regarding the impact of Plaintiff’s fibromyalgia with regard to her physical
capabilities, the undersigned questions how the ALJ came to the conclusion that Plaintiff could
perform light work. After reviewing the entire evidence of record, the undersigned does not find
substantial evidence to support the ALJ’s RFC determination and believes remand is necessary
so that the ALJ can more fully and fairly develop the record.
On remand, the ALJ is directed to address interrogatories to the physicians who have
evaluated and/or treated Plaintiff - - including, Dr. James Dunn- - 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 during the relevant time period in question. The ALJ may also order a consultative
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, 416.917.
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.
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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 5th day of January 2012.

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

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