Farris v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 2, 2015. (rg)

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

MELVIN L. FARRIS

PLAINTIFF

v.

NO. 14-5091

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Melvin L. Farris, 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) under the provisions of Titles 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).
I.

Procedural Background:
Plaintiff protectively filed his application for DIB on April 24, 2007, alleging an inability

to work since February 1, 2007, due to neck and shoulder problems. (Tr. 88). For DIB
purposes, Plaintiff maintained insured status through March 30, 2013. (Tr. 360, 540). An
administrative hearing was held on February 3, 2009, at which Plaintiff appeared with counsel
and testified. (Tr. 17-42).
In a written decision dated June 1, 2009, the ALJ determined Plaintiff retained the residual
functional capacity (RFC) to perform light work with limitations. (Tr. 48-54). The Appeals

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Council declined review of the ALJ’s decision on February 16, 2010. (Tr. 1, 432).
Plaintiff appealed the ALJ’s June 1, 2009, decision to this Court. In a decision dated June
21, 2011, this Court remanded the case back to the Commissioner to further develop the record,
and to re-evaluate Plaintiff’s impairments. (Tr. 451-457). The Appeals Council vacated the
ALJ's decision, and remanded Plaintiff's case back to the ALJ on February 6, 2012. (Tr. 459-462).
Plaintiff’s subsequent applications were combined with the Court remand application. A
supplemental administrative video hearing was held on July 9, 2012. (Tr. 376-409). Plaintiff
appeared with counsel and testified.
By written decision dated May 2, 2013, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 362).
Specifically, the ALJ found Plaintiff had the following severe impairments: a musculoskeletal
disorder (back disorder, cervical degenerative disc disease post fusion surgery); and a vision
disorder (visual disturbance secondary to scarring from injury). However, after reviewing all of
the evidence presented, the ALJ determined that through the date last insured 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. 363). The ALJ found
that through the date last insured Plaintiff retained the RFC to:
perform light work as defined in 20 CFR 404.1567(b) except as follows: The
claimant is able to frequently lift and/or carry ten pounds and occasionally
twenty pounds, sit for a total of about six hours in an eight hour workday, and
stand and/or walk for a total of about six hours in an eight hour workday. The
claimant cannot perform work that requires binocular vision. He cannot perform
overhead work.
(Tr. 363). With the help of a vocational expert, the ALJ determined that through the date last
insured, Plaintiff could perform work as a toy assembly worker, a warehouse inspector/checker,
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and a bottle line production worker. (Tr. 368).
Plaintiff then requested a review of the hearing decision by the Appeals Council which
issued an unfavorable opinion, that included the time period for Plaintiff’s subsequent SSI
application, on January 14, 2014. (Tr. 347-355). Plaintiff now seeks judicial review of that
decision. (Doc. 1). Both parties filed appeal briefs, and this case is before the undersigned
pursuant to the consent of the parties. (Doc. 7; Doc. 11; Doc. 13).
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.

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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 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

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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 determined that Plaintiff was able to perform light work with
limitations. Specifically, the ALJ found that Plaintiff could not perform “overhead work.” A
review of the medical record revealed that Dr. Ahmand Al-Khatib performed a consultative
neurological examination on August 11, 2012, and after examining Plaintiff and reviewing test
results, opined that Plaintiff had mild limitations in carrying and handling objects. (Tr. 879).
On August 15, 2012, Plaintiff underwent a consultative general physical examination performed
by Dr. Konstantin Berestnev. (Tr. 831-835). After examining Plaintiff, Dr. Berestnev opined
that Plaintiff could not lift or work above the shoulders. While the ALJ found Plaintiff could
do no overhead work, the handling limitations placed on Plaintiff by Dr. Al-Khatib were not
addressed by the ALJ. Accordingly, the Court does not find substantial evidence to support the
ALJ’s RFC determination.
On remand, the ALJ is directed to to address interrogatories to the physicians who have
evaluated and/or treated Plaintiff asking the physicians to review Plaintiff's medical records; to
complete a RFC assessment regarding Plaintiff's capabilities during the time period in question;

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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. Specifically,
the ALJ should request that the physicians address any handling and reaching limitations that
Plaintiff might have due to his impairments.
With regard to step five of the sequential evaluation process, the vocational expert
testified that a hypothetical individual with Plaintiff’s RFC could perform work as a toy
assembly worker, a warehouse inspector/checker, and a bottle line production worker. The
vocational expert was not asked if his testimony conflicted with the Dictionary of Occupational
Titles (DOT). However, the DOT indicates that a toy assembler, a warehouse inspector/checker,
and a bottle line production worker, all require frequent handling and reaching.1 See DICOT
§§§ 731.687-034, 222.687-010, 920.687-042 at www.westlaw.com. “[W]hen [vocational
expert] testimony conflicts with the DOT, the DOT controls when the DOT classifications are
not rebutted” Jones v. Astrue, 619 F.3d 963, 978 (8th Cir. 2010) quoting Dobbins v. Barnhart,
182 F.App’x. 618, 619 (8th Cir. 2006).

Due to the inconsistency between the vocational

expert’s testimony and the DOT, even if the Court found substantial evidence to support the
ALJ’s RFC finding, the Court does not find substantial evidence showing Plaintiff could perform
other work as a toy assembler, a warehouse inspector/checker, and a bottle line production
worker. Accordingly, the Court believes remand is also necessary so that the ALJ can more
fully and fairly develop the record regarding Plaintiff’s ability to perform other work in the
national economy.

1

According to the Regulations, handling is defined as seizing, holding, grasping, turning or otherwise working
primarily with the whole hand or hands. S.S.R. No. 85-15, 1985 WL 56857, *7 (1985). Reaching is defined as
extending the hands and arms in any direction. Id.

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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 2nd day of March, 2015.

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

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