Skolnekovich v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 14, 2012. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
IVAN J. SKOLNEKOVICH, II
CIVIL NO. 11-5128
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Ivan J. Skolnekovich, II, 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 claim 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).
Plaintiff protectively filed his current application for DIB on November 4, 2005, alleging
an inability to work since October 14, 2005, due to stroke and seizure. (Tr. 92-94, 118). An
administrative hearing was held on May 13, 2009, at which Plaintiff appeared with counsel and
testified. (Tr. 31-54).
By written decision dated October 2, 2009, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 62).
Specifically, the ALJ found Plaintiff had the following severe impairments: history of stroke and
seizure disorder. (Tr. 62). 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. 62). The ALJ found Plaintiff:
has no exertional limitations. The claimant cannot drive and can have no
exposure to hazards, such as unprotected heights and heavy machinery. The
claimant can perform unskilled work. The claimant can perform low-stress work
(defined as occasional decision making and occasional changes in work place
(Tr. 62). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a cashier II, a poultry worker and a fast food worker. (Tr. 67).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence,1 denied that request on April 7, 2011. (Tr. 1-4).
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. 9, 10).
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
Brief submitted by Gregory A. Thurman, Esq., dated November 22, 2009.
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 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
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.
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 Plaintiff had the following severe impairments: history
of stroke and seizure disorder.
The ALJ also determined that even with these severe
impairments, Plaintiff was able to perform unskilled and low-stress work with some limitations.
The medical evidence revealed that Plaintiff had been diagnosed and treated for a right
parietal cavernous angioma2 and seizure disorder in October of 2005. (Tr. 63). The medical
evidence further revealed that during the onset of a seizure, Plaintiff usually experienced a
headache that progressed into a migraine headache, chest pain, disorientation, left-sided
weakness, memory loss, blurred vision, or difficulty with speech. (Tr. 142, 228, 247). Plaintiff
stated that his seizures were not typical grand mal seizures, and were referred to as “spells” by
Dr. David Brown and Dr. Craig Cooper. (Tr. 35, 230, 311). After Plaintiff had a seizure, Dr.
Ryan Kaplan stated it took two to four days for him to recover, although Plaintiff stated that if
he could feel the seizure coming on and got in bed, it only took two days. (Tr. 42, 353).
At the administrative hearing held on May 13, 2009, Plaintiff testified that because he
could not predict when he would have a seizure, he could not be left alone with his children. (Tr.
46). Plaintiff testified that on his good days, he could do anything around the household. (Tr.
39). In addition, Plaintiff testified that he had been unable to return to his truck driving jobs
because of his driving limitations from the seizures, but he had tried to get a job at Sears after
his second stroke, and subsequently mutually agreed that he could not work there because of how
much work he missed due to his unpredictable seizures. (Tr. 40).
Parietal- Relating to the wall of any cavity. Stedman’s Medical Dictionary 1425 (28th ed. 2006).
Cavernous Angioma- Vascular malformation composed of sinusoidal vessels without a large feeding artery.
Stedman’s Medical Dictionary 87 (28th ed. 2006).
In determining Plaintiff’s RFC, the ALJ noted that Plaintiff had a history of
noncompliance with Dilantin, his medication prescribed by Plaintiff’s treating physician, Dr.
David Brown. (Tr. 63-64, 303). At the administrative hearing, Plaintiff testified that he had
financial issues that prevented him from always getting the Dilantin as necessary. (Tr. 44).
Plaintiff was thereafter prescribed Topamax in June of 2008 by his new treating neurologist, Dr.
Ryan Kaplan, and testified at the administrative hearing that he took Topamax regularly, but still
had three to four seizures a month. (Tr. 44, 45). There is nothing in the record to indicate
Plaintiff was not taking Topamax as prescribed. (Tr. 5-7). In addition, Dr. Dan Bell, of the
Eureka Christian Health Outreach, reported on August 27, 2009, that Plaintiff was still having
seizures while regularly taking Topamax. (Tr. 7). The fact that Plaintiff was still having seizures,
despite apparent compliance with medication, leads the Court to believe remand is necessary for
the ALJ to obtain a Physical RFC Assessment from one of Plaintiff’s treating neurologists.
On remand, the ALJ is directed to obtain a Physical RFC Assessment from a neurologist
who has treated Plaintiff, asking the neurologist to review Plaintiff's medical records; to
complete a Physical 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.
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.
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 14th day of June 2012.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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