Ferguson v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 9, 2012. (adw)

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

BILLY JOE FERGUSON

PLAINTIFF

v.

CIVIL NO. 11-5110

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Billy Joe Ferguson, 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 April 17, 2008,

alleging an inability to work since April 13, 2003,1 due to a torn rotator cuff; numbness in the
left shoulder; chronic back pain; right hand nerve damage; left hip, leg, and foot pain; toe
numbness; restless leg syndrome; and asthma. (Tr. 174-176, 178-182, 202). An administrative

1

The Court notes that at the administrative hearing on November 10, 2009, Plaintiff through his counsel amended his
alleged onset date to December 1, 2007. (Tr. 34).

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hearing was held on November 10, 2009, at which Plaintiff appeared with counsel and testified.
(Tr. 27-70).
By written decision dated February 12, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 11).
Specifically, the ALJ found Plaintiff had the following severe impairments: a back disorder with
radiculopathy; status post right wrist injury; and asthma. However, after reviewing all of the
evidence presented, the ALJ 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. 13). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to:
lift and carry 20 pounds occasionally and ten pounds frequently. The claimant
can sit for about six hours during an eight-hour workday and can stand and walk
for about six hours during an eight-hour workday. The claimant can occasionally
climb, balance, stoop, kneel, crouch and crawl. The claimant can occasionally
reach overhead with his left upper extremity. The claimant can frequently
handle and finger with his right upper extremity. The claimant is to avoid
concentrated exposure to dusts, fumes, gases, odors and poor ventilation.
(Tr. 13). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a cashier II, a fast food worker, and a small products assembler.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on March 7, 2011. (Tr. 1-3). 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).

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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. 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.
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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, 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
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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 with limitations. With regard to these limitations, the ALJ found Plaintiff could frequently
handle and finger with his right upper extremity. (Tr. 13). A review of the medical evidence
revealed that in a letter dated July 28, 2008, Dr. Michael W. Morse indicated that he conducted
EMG/NCV studies of Plaintiff’s right upper extremity, and found that Plaintiff had no response
of the median nerve when it was stimulated, and only minimal motor units in the right abductor
pollicis brevis muscle. (Tr. 390-394). Dr. Morse also noted that Plaintiff had both active and
marked chronic denervation in that muscle. The medical evidence revealed that Plaintiff
continued to complain of right wrist and hand problems. (Tr. 412, 582).

When questioned

during the administrative hearing before the ALJ in November of 2009, Plaintiff testified that
he continued to experience pain and numbness in his hand, and that he had difficulty using his
right hand to hold and grip. (Tr. 42). It is noteworthy that the jobs the ALJ determined Plaintiff
could perform all require constant or frequent handling, and frequent fingering. See DICOT §§§
211.462-010; 311.472-010; 706.684-022 at www.westlaw.com. 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 regarding Plaintiff’s right wrist and hand impairment.
On remand, the ALJ is directed to address interrogatories to the physicians who have
evaluated and/or treated Plaintiff, including Dr. Morse and Dr. Marcus J. Heim, asking the
physicians to review Plaintiff's medical records, to complete a RFC assessment regarding
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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.
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 9th day of July, 2012.

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

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