Copher v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 13, 2015. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CLIFFORD A. COPHER
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Clifford A. Copher, 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).
Plaintiff protectively filed his current applications for DIB and SSI on February 2, 2012,
alleging an inability to work since July 1, 2006, due to degenerative disc disease, PTSD (posttraumatic stress disorder), and heart problems. (Tr. 112, 119, 149). For DIB purposes, Plaintiff
maintained insured status through September 30, 2011. (Tr. 15). An administrative video hearing
was held on February 14, 2013, at which Plaintiff appeared with counsel and testified. (Tr. 32-49).
By written decision dated May 31, 2013, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 17).
Specifically, the ALJ found Plaintiff had the following severe impairments: degenerative disc
disorder (DDD); a past history of substance abuse disorder (SAD); and anxiety. 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. 17-18). The ALJ found Plaintiff retained the
residual functional capacity (RFC) to perform:
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) which allows for
occasional climbing, balancing, crawling, kneeling, stooping, crouching, with the
ability to understand, remember and carryout simple, routine and repetitive tasks,
respond to usual work situations and routine work changes, respond to simple,
direct and concrete supervision with occasional interaction with supervisors, coworkers and the public.
(Tr. 18). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a surveillance systems monitor, a photo copy document preparer, and an addressing clerk. (Tr.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on March 14, 2014. (Tr. 1-6). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 6). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 10, 11).
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 his 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
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.
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
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 could perform sedentary work with
limitations. In making this determination, the ALJ indicated that he gave some weight to the
opinions of Drs. Alice M. Davidson, and Bill F. Payne, both non-examining medical consultants,
who opined Plaintiff was able to perform light work with limitations. (Tr. 22). After reviewing
the entire record, the Court is troubled by the lack of a medical opinion regarding Plaintiff’s RFC
after his most recent two back surgeries performed on June 27, 2012, and January 8, 2013. (Tr.
708, 1304). As the record is void of any medical source statement from either an examining or
non-examining medical professional opining as to Plaintiff’s physical capabilities after Plaintiff’s
most recent back surgeries, the Court finds remand necessary so that the ALJ can more fully and
fairly develop the record regarding Plaintiff’s physical RFC.
On remand, the ALJ is directed to address interrogatories to a medical professional
requesting that said physician 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 the opinion so that an informed decision can be made regarding Plaintiff's ability to perform
basic work activities on a sustained basis. The ALJ may also order a consultative examination, in
which, the consultative examiner should be asked to review the medical evidence of record,
perform examinations and appropriate testing needed to properly diagnosis Plaintiff's condition(s),
and complete a medical assessment of Plaintiff's abilities to perform work related activities. See
20 C.F.R. § 416.917.
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, 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.
DATED this 13th day of July, 2015.
/s/ Erin L. Setser____________
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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