Lee v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 12, 2017. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
RAYMOJEAN D. LEE

PLAINTIFF

v.

CIVIL NO. 15-5247

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Raymojean D. Lee, 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 July 26, 2012, alleging an

inability to work since March 12, 2012, due to protruding/bulging cervical discs with severe
neck pain, a spinal cord injury, asthma, and chronic headaches. (Doc. 14, pp. 84, 186). An
administrative video hearing was held on November 5, 2013, at which Plaintiff appeared with
counsel and testified. (Doc. 14, pp. 47-83).
By written decision dated April 9, 2014, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Doc. 14,

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p. 35). Specifically, the ALJ found Plaintiff had the following severe impairments:
degenerative disc disease, asthma, 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. 14, p. 36). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) except she cannot
climb ropes or ladders or perform overhead work. She is able to occasionally
climb ramps and stairs, crawl, stoop, kneel and crouch but must avoid moderate
exposure to pulmonary irritants.
(Doc. 14, p. 36). With the help of a vocational expert, the ALJ determined Plaintiff could
perform her past relevant work as a dispatcher. (Doc. 14, p. 40).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence submitted denied that request on August 7, 2015. (Doc. 14,
p. 6). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned
pursuant to the consent of the parties. (Doc. 8). Both parties have filed appeal briefs, and the
case is now ready for decision. (Docs. 11, 13).
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 is able to perform sedentary work with
limitations. While there is substantial evidence of record to support the RFC that accounts for
most of Plaintiff’s alleged impairments, the Court questions the finding with respect to
Plaintiff’s alleged hearing loss. In making the RFC determination, the ALJ found Plaintiff’s
alleged hearing problem was not a severe impairment, and did not include any hearing
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limitations in the RFC.

A review of the record reveals that Plaintiff testified at the

administrative hearing on November 5, 2013, that she had difficulty hearing in her right ear,
and that she was working with an agency to help her obtain hearing aids for both ears. (Doc.
14, p. 80). Plaintiff further testified that with the use hearing aids she would not be able to use
headphones or ear buds because she would not be able to have any pressure on her ears. Id. at
80-81.
On February 4, 2015, Plaintiff submitted evidence to the Appeals Council indicating
that on November 22, 2013, she underwent an audiogram that revealed hearing loss in both
ears. 1 (Doc. 14, pp. 747-749). While the Court questions Plaintiff’s counsel’s failure to submit
this evidence to the ALJ timely, as she was Plaintiff’s counsel at the administrative level, this
evidence provides objective evidence supporting Plaintiff’s alleged hearing loss during the
relevant time period. The Court is also troubled by the fact that Plaintiff was found to be able
to perform her past relevant work as a dispatcher which requires frequent hearing. See DICOT
§ 379.362-010 at www.westlaw.com. After reviewing the record, the Court finds remand
necessary for the ALJ to more fully and fairly develop the record with respect to Plaintiff’s
alleged hearing impairment.
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

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Error! Main Document Only.We note we consider this evidence, as it was submitted to the Appeals Council and the
Appeals Council considered it before denying review. See Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994).

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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 12th day of January, 2017.

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

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