Pennington v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 12, 2016. (rg)

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

PLAINTIFF

V.

NO. 14-5383

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Forestina Pennington, 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 claims 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).
I.

Procedural Background:
Plaintiff protectively filed her current applications for DIB and SSI on February 23,

2012, alleging an inability to work since February 19, 2012, due to asthma, bulging discs in
her neck, knee pain, anxiety, depression, and high blood pressure. (Tr. 162-174, 197, 201).
An administrative hearing was held on July 19, 2013, at which Plaintiff appeared with
counsel and testified. (Tr. 66-90).
By written decision dated October 8, 2013, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe –

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obesity with associated arthralgias and sleep apnea under effective treatment. (Tr. 52).
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. 55). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to perform the full range of
sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a). (Tr. 55). With the help
of the vocational expert (VE), the ALJ determined that during the relevant time period,
Plaintiff would be capable of performing her past relevant work as an insurance clerk, which
is sedentary, semiskilled work. (Tr. 59).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which considered additional information and denied that request on October 28, 2014. (Tr. 16). 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. 9, 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.
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

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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
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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 RFC.

See McCoy v.

Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
III.

Discussion:
Plaintiff contends the ALJ erred in his determination of severe impairments and in

rejecting the opinions of treating physician Dr. Anna Eremieva. (Doc. 9). More specifically,
Plaintiff argues that the ALJ erred by failing to find that the following impairments were
severe: rheumatoid arthritis; fibromyalgia; degenerative disc disease of the cervical spine
with bulging disc C4-C7; degenerative disc disease L5-S1; neuropathy/stocking glove
dysesthesia bilateral upper and lower extremities; chronic fatigue; abdominal pain with
erosive gastritis; migraine headaches; asthma; and mental impairments – mood disorders,
depression, anxiety, and personality disorder.
The Court is not persuaded that Plaintiff met her burden of proving her degenerative
disc diseases, chronic fatigue, abdominal pain, migraine headaches, asthma and mental
impairments were severe, but finds that after reviewing the entire record as a whole, this
matter should be remanded to the ALJ for further consideration and additional findings
relating to the rheumatoid arthritis and fibromyalgia.
An impairment is severe within the meaning of the regulations if it significantly limits
an individual’s ability to perform basic work activities. 20 C.F.R. §§ 1520(a)(4)ii),
416.920(a)(4)(ii). An impairment or combination of impairments is not severe when medical
and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s ability to
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work. 20 C.F.R. § § 404.1521, 416.921. The Supreme Court has adopted a “de minimis
standard” with regard to the severity standard. Hudson v. Bowen, 870 F.2d 1392, 1395 (8th
Cri. 1989). “While ‘[s]everity is not an onerous requirement for the claimant to meet …it is
also not a toothless standard.’” Wright v. Colvin, 789 F.3d 847, 855 (8th Cir. 2015)(quoting
Kirby v. Astrue, 500 F.l3d 705, 708 (8th Cir. 2007).
During the relevant time period, Plaintiff was seen by Dr. Angel Perez on June 25,
2012, of Northwest Arkansas Neuroscience Institute. (Tr. 441). Dr. Perez assessed Plaintiff
with muscle aches, generalized (myalgias) and tingling (paresthesia). (Tr. 443). Dr. Perez
found the neurological examination was pretty normal and the cervical MRI did not reveal
cord stenosis or nerve impingement, but was more likely a diagnosis of fibromyalgia. (Tr.
444). Dr. Perez referred Plaintiff to Dr. Jessica Short, a rheumatologist. (Tr. 444). On
September 17, 2012, Dr. Short assessed Plaintiff with arthralgias in multiple sites, muscle
aches, generalized (myalgias) and depression. (Tr. 722). Dr. Short reported that Plaintiff
might have a component of underlying fibromyalgia, but would not be able to say so until
further treatment of possible inflammatory arthritis was initiated. (Tr. 723). On October 22,
2012, Plaintiff was seen again by Dr. Short for a one month follow-up. (Tr. 674). Plaintiff
was reported to continue to have pain in her bilateral elbows, shoulders, lower back into her
left lateral hips and bilateral ankles. (Tr. 674). Lab tests revealed her SED rate was high (Tr.
676), and Dr. Short diagnosed Plaintiff as follows:
1. Arthralgias in Multiple Sites
2. Rheumatoid Arthritis
3. Serum Enzyme Levels – ALT (SGPT) Elevated
4. Esophageal Reflux

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(Tr. 677).

Dr. Short also stated that Plaintiff might have a component of underlying

fibromyalgia. On February 21, 2013, another rheumatologist, Dr. Roy Samson, examined
Plaintiff and found Plaintiff had 16/18 fibromyalgia tender points, and noted that Plaintiff
had diffuse mild bilateral tenderness to palpation. He also observed that Plaintiff had better
control of her pain while on Meloxicam. (Tr. 736). On March 15, 2013, Dr. Sampson
reported that Plaintiff felt the Meloxicam was not helping and her pain level was reported as
8/10 in severity. (Tr. 770). He reported that Plaintiff had diffuse mild bilateral tenderness to
palpation in her shoulders, moderate bilateral tenderness to palpation in her wrists, and mild
bilateral tenderness to palpation in her ankles. (Tr. 772-773). Dr. Sampson felt that because
Plaintiff did not have any active inflammation or synovitis on examination, it seemed that
much of her pain could be more likely related to fibromyalgia. (Tr. 774).
The Eighth Circuit has recognized that fibromyalgia is a chronic condition which is
difficult to diagnose and may be disabling. Garza v. Barnhart, 397 F.3d 1087, 1089 (8th Cir.
2005)(per curiam). Fibromyalgia “can (like arthritis) cause significant pain and fatigue and it
can similarly interfere with a person’s ability to carry on daily activities.” Cumella v. Colvin,
936 F.Supp. 2d 1120, 1127 (D.S.D. 2013). Plaintiff complained throughout the relevant time
period of severe pain all over her body, and testified as to the pain she experienced in her
body. (Tr. 75-81). On July 5, 2012, Plaintiff reported that any movement, including walking
and sitting, brought on pain, and that she had difficulty driving, could not lift anything over
five pounds without causing severe pain, and had numbness in her hands and feet and severe
fatigue, which made it difficult for Plaintiff to care for her personal needs and from engaging
in many daily activities. (Tr. 210, 214). The Court believes Plaintiff has presented sufficient

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evidence to support the “de minimis standard” with regard to her rheumatoid arthritis and
fibromyalgia, and that they should be considered severe impairments.
With respect to the ALJ’s RFC Assessment, he concluded that Plaintiff retained the
RFC to perform the full range of sedentary work. (Tr. 55). The ALJ found that he could not
give the opinions of Plaintiff’s treating physician, Dr. Eremieva, significant weight, because
they were inconsistent with Plaintiff’s own report of what she was able to do and inconsistent
with the doctor’s own clinic notes documenting only routine treatment for a number of
conditions. (Tr. 58). However, the Court notes that even though the ALJ gave significant
weight to the opinion of Dr. Jim Takach, a non-examining consultant who completed a
Physical RFC Assessment on May 9, 2012, he did not incorporate the postural and
environmental limitations Dr. Takach found in his RFC.
Based upon the foregoing, the Court finds it appropriate to remand this matter to the
ALJ in order for him to reconsider Plaintiff’s severe impairments in accordance with the
Court’s opinion above, and to re-evaluate Plaintiff’s RFC.
IV.

Conclusion:
Accordingly, the Court concludes that the ALJ’s decision is not supported by

substantial evidence, and therefore, reverses and remands this matter to the Commissioner for
further consideration pursuant to sentence four of 42 U.S.C. §405(g).
IT IS SO ORDERED this 12th day of January, 2016.

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

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