Brown v. Social Security Administration Commissioner

Filing 8

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 23, 2012. (adw)

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

BOBBY BROWN

PLAINTIFF

v.

CIVIL NO. 11-5016

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Bobby Brown, 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) 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 his current applications for DIB and SSI on July 12, 2007,

alleging an inability to work since October 10, 2006,1 due to diabetes mellitus, chronic left
shoulder pain, and severe sleep apnea with excessive daytime sleepiness. (Tr. 107, 112). An

1

At the administrative hearing before the ALJ on March 17, 2009, Plaintiff through his counsel, moved to amend the
onset date to July 1, 2007. (Tr. 42-43).

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administrative hearing was held on March 17, 2009, at which Plaintiff appeared with counsel and
testified. (Tr. 18-47).
By written decision dated June 19, 2009, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 57).
Specifically, the ALJ found Plaintiff had the following severe impairments: diabetes, a rotator
cuff tear, and sleep apnea. 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. 59). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform the full range of light work as defined in 20 CFR 404.1567(b) and
416.967(b). He can occasionally push/pull with the bilateral upper extremities
and can perform occasional overhead reaching. He cannot be exposed to heights.
(Tr. 59). With the help of a vocational expert, the ALJ determined Plaintiff could perform his
past relevant work as a security guard and an electric assembler. (Tr. 62).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence denied that request on November 24, 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. 3). Both parties have filed appeal briefs, and the case is now
ready for decision. (Docs. 6,7).
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
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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. 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 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
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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, 416.920. Only
if the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work
experience 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, 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 the present case, the ALJ found that Plaintiff maintained the RFC to perform light
work that required only occasional pushing/pulling with the bilateral upper extremities, and
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occasional overhead reaching. In making this RFC determination, the ALJ pointed to Dr.
Dahlmann’s general examination notes wherein, Dr. Dahlmann opined that Plaintiff had no
limitations in his ability to walk, stand, sit, lift, carry, handle, finger, see, hear or speak. (Tr.
215). The ALJ did not, however, address Dr. Dahlmann’s examination notes that indicated
Plaintiff lacked external rotation in both shoulders. (Tr. 61-62, 213). The record also shows
that a non-examining medical consultant opined that Plaintiff was limited in his ability to reach
in all directions, and specifically limited in his ability to overhead reach. (Tr. 233). It is also
noteworthy that the two jobs that the ALJ found Plaintiff could perform require frequent
reaching. See DICOT §§ 726.684-018; 372.667-034 at www.westlaw.com.
The Court is also troubled by the ALJ’s failure to address Plaintiff’s alleged neuropathy
of the feet. Plaintiff testified at the administrative hearing that there were times he experienced
numbness in his feet. (Tr. 29). The medical evidence revealed that in August of 2008, Plaintiff
stepped on a nail but did not realize that he was hurt until later in the day; and that on June 26,
2009, Plaintiff was noted to have decreased sensation in his feet, bilaterally.2 (Tr. 393, 435).
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 asking the physicians to review Plaintiff's medical records; to
complete a RFC assessment regarding Plaintiff's capabilities during the time period in question,

2

We note we consider this evidence, as it was submitted to the Appeals Council and the Appeals Council
considered it before denying review. (Tr. 4). See Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994).

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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.
IV.

Conclusion:
Accordingly, the Court concludes 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 23rd day of February 2012.

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

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