Ashley v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 28, 2013. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OR ARKANSAS
JEFFERY ANDREW ASHLEY
CIVIL NO. 11-5231
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Jeffery Andrew Ashley, 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 supplemental security income (SSI) benefits under the
provisions of Title 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).
Plaintiff protectively filed his current application for SSI on February 10, 2009, alleging
an inability to work since January 1, 2005, due to a back injury and four compressed vertebrae.
(Tr. 110, 135). An administrative hearing was held on April 15, 2010, at which Plaintiff
appeared with counsel and testified. (Tr. 25-68).
By written decision dated July 19, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 16).
Specifically, the ALJ found Plaintiff had the following severe impairments: degenerative disc
disease of the back, and obesity. 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. 16). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that
he may not use ladders, ropes, or scaffolds, and may only occasionally use ramps
and stairs, and may only occasionally balance, stoop, kneel, crouch, or crawl.
(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a hand packager, a sorter, and a machine tender. (Tr. 20).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on July 28, 2011. (Tr. 1-6). 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, 10).
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.
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.
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. § 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. § 416.920.
When the Appeals Council has considered material new evidence and nonetheless
declined review, the ALJ's decision becomes the final action of the Commissioner. The Court
then has no jurisdiction to review the Appeals Council's action because it is a nonfinal agency
action. See Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992). At this point, the Court’s
task is only to decide whether the ALJ's decision is supported by substantial evidence in the
record as a whole, including the new evidence made part of the record by the Appeals Council
that was not before the ALJ. As the United States Court of Appeals for the Eighth Circuit has
noted, "this [is] a peculiar task for a reviewing court." Riley v. Shalala, 18 F.3d 619, 622 (8th
Cir.1994). However, once it is clear that the Appeals Council considered the new evidence, then
the Court must factor in the evidence and determine whether the ALJ's decision is still supported
by substantial evidence. This requires the Court to speculate on how the ALJ would have
weighed the newly submitted evidence had it been available at the initial hearing. Flynn v.
Chater, 107 F.3d 617, 621 (8th Cir.1997). Thus, the Court has endeavored to perform this
function with respect to the newly submitted evidence.
The new evidence submitted to the Appeals Council reflects the following. On
September 13, 2010, Plaintiff complained of knee pain that had started in May of 2010. (Tr.
300). X-rays of Plaintiff’s knee revealed moderate degenerative osteoarthritis. (Tr. 303).
Plaintiff also underwent a second general physical examination on September 30, 2010, wherein
Dr. C.R. Magness opined that Plaintiff had limited joint motion and muscle weakness. (Tr. 295-4-
299). Dr. Magness further opined that Plaintiff had severe limitations with lifting and carrying;
and moderate to severe limitations with walking and standing. Had the ALJ had this medical
evidence before her when making her decision on this case, the outcome may very well have
been different. Accordingly, the Court believes that remand is necessary to allow the ALJ to
consider this new and material evidence.
On remand, the ALJ is also directed to address interrogatories to either an examining or
non-examining physician, asking that physician 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. 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, 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 28th day of January, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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