Killian v. Social Security Administration Commissioner

Filing 8

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 14, 2012. (tg)

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

PLAINTIFF

V.

NO. 11-5129

MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Michael Killian, 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 application for DIB on September 25, 2007, and filed his

application for SSI on June 19, 2008, alleging an inability to work since December 21, 2005, due
to diabetes, kidney problems, feet nerve damage, high blood pressure, hernia, pain - cannot stay
on his feet too long; is always tired, and cannot lift. 1 (Tr. 145, 149). An administrative hearing
was held on April 29, 2009, at which Plaintiff appeared with counsel and testified. (Tr. 7-39).

1

At the hearing before the ALJ, Plaintiff amended his onset date to June 28, 2006. (Tr. 13).

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By written decision dated November 5, 2009, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe - Diabetes
mellitus with neuropathy and hypertension. (Tr. 45). 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. 46). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to:
lift and carry 10 pounds occasionally and less than 10 pounds frequently.
The claimant can sit for about 6 hours during an eight-hour workday and
can stand and walk for at least 2 hours during an eight hour work day.
The claimant can occasionally climb, balance, stoop, kneel, crouch, and
crawl. The claimant can perform unskilled work.
(Tr. 46). With the help of a vocational expert (VE), the ALJ determined Plaintiff could perform
work as a patcher, call-out operator, and charge account clerk. (Tr. 50).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on March 31, 2011. (Tr. 3-5). 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).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
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)(D). 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 had engaged in substantial
gainful activity since filing his claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
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an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. §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 (RFC). See McCoy v. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
III.

Discussion:
In this case, the ALJ found that diabetes mellitus with neuropathy and hypertension were

Plaintiff’s severe impairments. Plaintiff was diagnosed with diabetic neuropathy as early as
September 15, 2007, when he was admitted to Washington Medical Regional Center,
complaining of “burning feet.” (Tr. 231). Plaintiff complained of constant pain while walking.
(Tr. 234). On September 20, 2007, Plaintiff was diagnosed with diabetes with nephropathy2 and
neuropathy3 at the Northwest Arkansas Free Health Center. (Tr. 221, 261). In his October 14,
2007 Pain and Other Symptoms report, Plaintiff complained of burning, numbness, tingling, and
pain in his feet and legs all the time. (Tr. 165). On December 6, 2007, Plaintiff was diagnosed
by the Northwest Arkansas Free Health Center with neuropathy, gastropathy,4 and nephropathy.
(Tr. 220). The free health center also diagnosed Plaintiff with neuropathy and gastropathy on
January 29, 2008, and with neuropathy and nephropathy on February 21, 2008. (Tr. 219, 258,
2

Nephropathy - Any disease of the kidneys; see also nephritis. Called also nephrosis. Dorland’s Illustrated
Medical Dictionary 1261 (31st ed. 2007)

3

Neuropathy - A functional disturbance or pathological change in the peripheral nervous system, sometimes
limited to noninflammatory lesions as opposed to those of neuritis; the etiology may be known or unknown.
Known etiologies include complications of other diseases (such as diabetes or porphyria), or of toxicity states
(such as poisoning with arsenic, isoniazid, lead, or nitrofuantoin).... Id. At 1287.

4

Gastrophy - Any disease of the stomach; see also gastritis and gastroenteropathy. Id. At 776.

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259). In an August 19, 2008 Function Report - Adult, Plaintiff reported that he was always in
pain from the diabetes and neuropathy. (Tr. 185). Also on August 19, 2008, the free health
center diagnosed Plaintiff with “Perp. Neuropathies.” Tr. 217). On September 5, 2008, the free
health center diagnosed Plaintiff with “chronic pain.” (Tr. 255). On November 5, 2008, January
7, 2009, and February 6, 2009, the free health center diagnosed Plaintiff with “Perp.
Neuropathies.” (Tr. 251, 252, 254 ).
At the hearing, Plaintiff testified that he had pain in his feet, lower legs, and the backs
of his hands and arms. (Tr. 24). He also testified that the pain in his feet and legs was rated an
“8" when he took his pain medication, and “10" if he did not take the medication. In his
decision, the ALJ addressed the pain in Plaintiff’s hands and arms by stating that it was
reasonable to conclude that the use of his hands was limited to the extent that he was able to lift
and carry 10 pounds occasionally and less than 10 pounds frequently. (Tr. 47). Regarding the
Plaintiff’s burning pain in his feet, the ALJ stated that because “the medical evidence that shows
that the claimant has been diagnosed with neuropathy which has improved with his compliance
with medical treatment, the undersigned has concluded that he is able to sit for about six hours,
and stand and walk for at least two hours, during an eight hour work day although he can only
occasionally climb, balance, stoop, kneel, crouch, and crawl.” (Tr. 47).
Although the record indicates that Plaintiff’s diabetes mellitus might be under better
control, there is nothing in the record indicating that Plaintiff’s neuropathies were necessarily
better. Therefore, the ALJ’s conclusion upon which his RFC was based is inaccurate.
Accordingly, the Court finds that this matter should be remanded in order for the ALJ to
order a nerve conduction study of Plaintiff and to have an examining physician offer an opinion
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as to the extent of the limitation caused by his neuropathies. The ALJ should then consider the
effect, if any, that Plaintiff’s neuropathies have on his RFC.
IV.

Conclusion:
Accordingly, the Court concludes that the ALJ’s decision is not supported by substantial

evidence, and therefore, the denial of benefits to 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).
ORDERED this 14th day of June, 2012.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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