Ritz v. Social Security Administration Commissioner
Filing
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MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 5, 2016. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
NANCY JO RITZ
PLAINTIFF
v.
CIVIL NO. 15-5139
CAROLYN W. COLVIN, Commissioner
Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Plaintiff, Nancy Jo Ritz, 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) under the provisions of Title 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 her current application for DIB on September 26, 2011,
alleging an inability to work since September 19, 2011, 1 due to Hepatitis C, diabetes, and a
heart condition. (Doc. 11, pp. 686, 718). For DIB purposes, Plaintiff maintained insured status
through December 31, 2014. (Doc. 11, pp. 572, 690). An administrative video hearing was
held on March 26, 2013, at which Plaintiff appeared with counsel and testified. (Doc. 11, p.
588).
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Plaintiff, through her counsel, amended the alleged onset date to July 31, 2010. (Doc. 11, pp. 572, 586, 795).
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By written decision dated July 5, 2013, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Doc. 11,
p. 574). Specifically, the ALJ found Plaintiff had the following severe impairments: Hepatitis
C and obesity. 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. (Doc. 11, p.
578). The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform a
full range of sedentary work as defined in 20 C.F.R. §404.1567(a). (Doc. 11, p. 578). With the
help of a vocational expert, the ALJ determined Plaintiff could perform her past relevant work
as a collection clerk and a credit and collection manager. (Doc. 11, p. 581).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on May 5, 2015. (Doc. 11, p. 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. 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 v. Barnhart, 314
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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)(c). A Plaintiff must show that her disability, not simply her
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 her 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 her age, education, and experience. See 20 C.F.R. § 404.1520. Only
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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. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d
504, 505 (8th Cir. 2000); 20 C.F.R. § 404.1520.
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). It is
assessed using all relevant evidence in the record. Id.
This includes medical records,
observations of treating physicians and others, and the claimant’s own descriptions of her
limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). 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). “[T]he ALJ is [also] required to set forth specifically a claimant’s
limitations and to determine how those limitations affect h[er] RFC.” Id.
In the present case, the ALJ determined Plaintiff maintained the RFC to perform a full
range of sedentary work. In determining Plaintiff’s RFC, ALJ discounted treating physician,
Dr. Wm. C. Kendrick’s, opinion that she could only work one to two hours a day, and that she
could stand for up to fifteen minutes up to a total of two hours in a workday, and could lift up
to twenty pounds occasionally, and five pounds frequently. (Doc. 11, p. 1016). It appears
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from this the ALJ presumed that Plaintiff was able to sit for six hours in a workday. However,
medical evidence also shows that Dr. Kendrick stated as follows when asked about the
assessment that he completed:
What I filled out described her limitations. IT (sic) is implicit in these
limitations that there is almost no job that she can do. I am not sure when she
will be able to go to work. We can send this note.
TO WHOM IT MAY CONCERN:
This patient has multiple medical problems that together keep her from being
gainfully employed. These problems are chronic, and she will be unable to
work for at least 6 months.
(Doc. 11, p. 1237).
As the only physical RFC assessments of record were dated at least six months prior to
the opinion of Dr. Kendrick, the Court is unclear as to what medical evidence was used to
support the determined RFC. At the very least, the ALJ should have contacted Dr. Kendrick
and requested that he complete a RFC form. A review of the record also indicates that the ALJ
discounted Plaintiff’s report of grip problems which appear to be supported by the examination
of Dr. C.R. Magness, also discounted by the ALJ, who found Plaintiff had 50% grip strength
in her right hand, and 40% grip strength in her left. (Doc. 11, p. 847). After reviewing the
record, the Court believes remand is necessary so that the ALJ can more fully and fairly
develop the record Plaintiff’s physical RFC.
On remand, the ALJ is directed to address interrogatories to a medical professional
requesting that said physician review all of 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.
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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
assessment 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 5th day of August, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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