Jensen v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 15, 2013. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
SHERI RANAE JENSEN
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Plaintiff, Sheri Ranae Jensen, 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 her claim for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) 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).
Plaintiff protectively filed her applications for DIB and SSI on January 12, 2010, alleging
an inability to work since January 1, 2007, due to severe depression, broken right knee, “busted”
ear drum, and nerve damage in her neck, back, hip and right leg. (Tr. 24, 131, 139). An
administrative hearing was held on May 13, 2011, at which Plaintiff appeared with counsel and
testified. (Tr. 20-42).
By written decision dated July 29, 2011, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe - status post
right tibial plateau fracture with right knee surgery. (Tr. 11). 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 perform the full range of light work as defined in 20 CFR 404.1567(b) and
416.967(b). (Tr. 13). With the help of the vocational expert (VE), the ALJ determined that
during the relevant time period, Plaintiff would be able to perform her past relevant work as a
receptionist, administrative clerk, or process server. (Tr. 15).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on November 8, 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. 3).
Both parties have filed appeal briefs, and the case is now ready for decision . (Docs. 5, 6).
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 her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her 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 her disability, not simply her 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 her 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
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 her 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 her residual functional capacity (RFC). See McCoy v. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following issues on appeal: 1). The ALJ erred in failing to consider
all of the Plaintiff’s impairments in combination; 2) The ALJ erred in his analysis and credibility
findings in regard to the Plaintiff’s subjective complaints of pain; 3) The ALJ erred in finding
that Plaintiff retained the RFC to perform a full range of light work; and 4) The ALJ erred in
failing to fully and fairly develop the record. (Doc. 5).
What causes the Court concern is the fact that no Physical RFC Assessment was
completed in this case. The ALJ also discussed Plaintiff’s daily activities only as they related
to Plaintiff’s alleged mental impairments, finding that in the area of daily living activities, “the
claimant has no limitation from psychological causes.” (Tr. 12). He also stated as follows:
She has difficulty standing over 5-10 minutes. Low back pain restricts
her sitting to about 10 minutes. After that, she must no only stand but,
also, move about. Ms. Jensen alleged she lacks the strength to pick up
grocery sacks so her daughters do that for her. When she attempts to lift
anything, she feels pain all along her right side. Even with pain
medication, her constant pain is reduced to only a “7" on a scale of 10.
She lies down 2-3 times a day. She avoids being in public as much as she
can. In a function report, she wrote that she is not as social as she once
was and she has abandoned dancing. She stated she is fearful of falling
while walking (5E).
Although the ALJ addressed Plaintiff’s knee issues, as to Plaintiff’s back pain, he stated:
Although Ms. Jensen spoke of low back pain in her testimony, Dr. Coker
writes only of her knee. The undersigned does not find supportive
evidence for the claimant’s assertions that her pain limits her postural
activities to the extent she alleges.
The medical records reflect that Plaintiff complained of low back pain to chiropractor
John Keller on December 8, 2006. (Tr. 321). She also complained of low back problems to
Rodney Goodsell, Ph.D., a marriage counselor, on July 10, 2007. (Tr. 359). On January 26,
2008, Plaintiff presented herself to Washington Regional Medical Center, complaining of sharp,
constant pain in her back. (Tr. 230). She was diagnosed with muscle pain and muscle spasms.
(Tr. 232). On July 8, 2008, when Plaintiff presented herself to Dr. Matthew J. Coker, of Ozark
Orthopaedics, who performed surgeries on Plaintiff’s right knee, he reported that they did talk
about Plaintiff’s lower back problems as well. (Tr. 426).
In the Disability Report - Field Office, it was reported that Plaintiff had difficulty sitting,
standing, and walking. (Tr. 132). In her Pain Questionnaire dated February 5, 2010, Plaintiff
complained of constant headaches, TMJ pain, neck muscles tight, back lower/upper, right knee
pain, and reported that she could stand only 5 to 10 minutes at a time. She further reported that
she was going to a chiropractor two to three times a week, which helped, as well as taking Aleve
daily. (Tr. 167). In an Undated Disability Report - Appeal, Plaintiff reported that she could
hardly lift anything at all. (Tr. 174). In another Undated Disability Report - Appeal, Plaintiff
reported that her back hurt constantly. (Tr. 182). At the hearing, Plaintiff testified that she had
difficulty standing because of her lower back and right knee, and that the pain in her back
radiated into her leg. (Tr. 28-29). She stated that from her shoulder down into her back on her
right side hurt when she lifted anything. (Tr. 31). She further stated that on a pain scale, her
lower back pain was eight and her knee pain was seven. (Tr. 31). Although Plaintiff testified
that losing 110 pounds after having her gastric bypass surgery helped to alleviate some of the
pain in her knee and back, it had not totally reduced the pain. (Tr. 33).
The ALJ gave Dr. Coker’s records great weight, and Dr. Coker’s most recent report dated
February 18, 2011, indicated that Plaintiff was doing well after the pins were removed from her
right knee. However, based upon the record as a whole, there is a question as to whether
Plaintiff suffered from limitations that would affect her ability to function in the workplace,
given her two knee surgeries, and complaints of neck and lower back pain. Accordingly, the
Court believes the matter should be remanded in order for the ALJ to obtain a Physical RFC
Assessment from either Plaintiff’s treating physician or from an examining physician. The Court
also suggests that given Plaintiff’s alleged mental impairments, the ALJ may want to consider
obtaining a Mental RFC Assessment from an examining mental health specialist. Once received,
the ALJ should then re-evaluate Plaintiff’s RFC.
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 15th day of February, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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