Kilbourne v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on September 1, 2017. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CIVIL NO. 16-5085
NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration
Plaintiff, Merinda Kilbourne, 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 claim for supplemental security income (SSI) benefits under the
provisions of Title 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 her current application for SSI on May 2, 2013, alleging an
inability to work due to multi-focal choroidal, an auto-immune disorder, sacroilitis, migraines,
contorted vertebrae, asthma and allergies. (Tr. 54, 138). An administrative video hearing was
held on May 16, 2014, at which Plaintiff appeared with counsel and testified. (Tr. 32-53).
Nancy A. Berryhill, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
By written decision dated August 14, 2014, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 23).
Specifically, the ALJ found Plaintiff had the following severe impairments: chorioretinitis and
arthralgias. 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. 23). The
ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 416.967(b) except she cannot perform
tasks that would require excellent binocular vision or depth perception such as
driving. She should avoid hazards or moving machinery such as forklifts and
should not drive as part of work.
(Tr. 24). With the help of a vocational expert, the ALJ determined Plaintiff could perform
work as a furniture rental clerk, a blending tank tender, and a toll collector. (Tr. 26).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after considering additional evidence denied that request on February 23, 2016. (Tr. 1-5).
Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant
to the consent of the parties. (Doc. 7). Both parties have filed appeal briefs, and the case is
now ready for decision. (Docs. 12, 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.
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 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).
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. § 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 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. § 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). 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 light work with
limitations. In making this determination, the ALJ notes that the non-examining medical
consultants opined that Plaintiff could perform light work on June 28, 2013, and September
11, 2013. (Tr. 58, 69). A review of the record revealed that on June 7, 2013, Dr. Roy Sampson
indicated that Plaintiff’s back pain was uncontrolled and that Plaintiff was unable to obtain a
MRI due to the lack of finances. (Tr. 264-267). Medical records dated after September of
2013, indicate Plaintiff continued to complain of pain all over her body. Plaintiff was
diagnosed with carpal tunnel syndrome of the right upper extremity in October of 2013, and
continued to complain of severe pain in her elbows in March of 2014. (Tr. 350, 361). After
reviewing the record, Court believes remand is necessary for the ALJ to 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, 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 1st day of September 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE
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