Burns v. Social Security Administration Commissioner

Filing 18

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 30, 2015. (jn)

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

JOHN EDDIE BURNS

PLAINTIFF

v.

NO. 13-5137

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, John Eddie Burns, 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 November 19,

2009, alleging an inability to work since July 11, 2009, due to a lumbar spine impairment, severe
back pain, Hepatitis, and gout. (Tr. 136, 140, 178). An administrative hearing was held on
September 15, 2011, at which Plaintiff appeared with counsel and testified. (Tr. 28-40).
By written decision dated October 12, 2011, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 15).

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Specifically, the ALJ found Plaintiff had the following severe impairments: gouty arthritis,
obesity, hypertension, a panic disorder, and a depressive disorder. 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
moderate limitations in his ability to understand, remember, and carryout detailed
instructions; maintain attention and concentration for extended periods; ability
to sustain an ordinary routine without special supervision; ability to work in
coordination with or proximity to others without being distracted by them; ability
to complete a normal workday and work week without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; ability to accept instructions and
respond appropriately to criticism from supervisors; ability to respond
appropriately to changes in the workplace; and the ability to set realistic goals or
make plans independently of others (unskilled work).
(Tr. 17). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a hotel housekeeper, and a fast food worker. (Tr. 21-22).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on May 3, 2013. (Tr. 1-6). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 7). Both
parties have filed appeal briefs, and the case is now ready for decision. (Doc. 16; Doc. 17).
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.

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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 her 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 determined that Plaintiff was able to perform light work with
limitations. While the Court finds substantial evidence to support the ALJ’s determination
regarding Plaintiff’s mental impairments and his mental RFC, after reviewing the entire record
the Court cannot say the same about Plaintiff’s alleged physical impairments. A review of the
record revealed that Plaintiff complained of experiencing chronic pain, particularly in his hands,
left ankle and left big toe. The record revealed that in February and March of 2010, Plaintiff was
examined by Dr. C.R. Magness, and Dr. David Oberlander, respectively, and that both of these
physicians noted Plaintiff’s abnormal gait due to pain. The ALJ gave little weight to Dr.
Magness’s opinion that Plaintiff had moderate to severe limitations with walking and lifting.
(Tr. 387-395). The Court is troubled by the fact that Dr. Oberlander also indicated that Plaintiff
appeared “to be in a lot of pain,” specifically in the left foot and left large toe region, which Dr.
Oberlander opined was legitimate due to his gout. (Tr. 335-337). The ALJ did not address Dr.
Oberlander’s assessment of Plaintiff’s pain when addressing the opinion evidence. As light
work requires the ability to stand and walk for at least six hours in an eight-hour workday, and
it appears that Dr. Oberlander, who examined Plaintiff, indicated that Plaintiff’s left foot and toe
pain was legitimate, the Court believes remand is necessary so that the ALJ can more fully and
fairly develop the record with regard to Plaintiff’s RFC.
On remand, the ALJ is directed to address interrogatories to Dr. Oberlander requesting
that Dr. Oberlander review Plaintiff's medical records; complete a RFC assessment regarding
Plaintiff's capabilities during the time period in question; and give the objective basis for his

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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.
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 30th day of March, 2015.

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

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