Rife v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on April 7, 2017. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CIVIL NO. 16-5106
NANCY A. BERRYHILL,
Acting Commissioner, Social Security Administration 1
Plaintiff, Karen Rife, 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 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 application for SSI on November 14, 2013. (ECF No.
11, p. 22). In her application, Plaintiff alleges disability due to depression, diverticular disease,
irritable bowel syndrome (“IBS”), anxiety, and chronic pain. (ECF No. 11, p. 308). Plaintiff
alleges an onset date of November 14, 2011. (ECF No. 11, pp. 22, 176). These applications
were denied initially and again upon reconsideration. (ECF No. 11, pp. 83-105).
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs
to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
Thereafter, Plaintiff requested an administrative hearing on her denied application, and
this hearing request was granted. (ECF No. 11, p. 120). Plaintiff’s administrative hearing was
held on December 4, 2014, in Fort Smith, Arkansas (ECF No. 11, pp. 36-82). Plaintiff was
present and was represented by Ann Donovan. Id. Plaintiff, Plaintiff’s cousin Merrin Dalifut,
and Vocational Expert (“VE”) John Massy testified at this hearing. Id. At the time of this
hearing, Plaintiff was forty-eight (48) years old, which is defined as a “younger person” under
20 C.F.R. § 416.963(c). (ECF No. 11, p. 39). As for her level of education, Plaintiff has a high
school diploma. Id. at 181.
After this hearing, on February 24, 2015, the ALJ entered an unfavorable decision
denying Plaintiff’s application for SSI. (ECF No. 11, pp. 19-30). In this decision, the ALJ
found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since November 14,
2013, her application date. (ECF No. 11, p. 24, Finding 1). The ALJ determined Plaintiff had
the following severe impairments: degenerative disc disease, gastro-intestinal disorder, and
peripheral neuropathy. (ECF No. 11, pp. 24-25, Finding 2). Despite being severe, the ALJ
determined these impairments did not meet or medically equal the requirements of any of the
Listings of Impairments in Appendix 1 to Subpart P of Part 404 (“Listings”). (ECF No. 11, p.
25, Finding 3).
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (ECF No.
11, pp. 25-28, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and found
her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff
retained the RFC to perform:
sedentary work as defined in 20 C.F.R. 416.967(a) except occasional climb,
balance, crawl, kneel, stoop, and crouch and requires a cane to ambulate.
The ALJ then determined Plaintiff had no Past Relevant Work (“PRW”). (ECF No. 11,
p. 28, Finding 5). The VE testified at the administrative hearing regarding this issue. (ECF No.
11, pp. 76-81). Based on Plaintiff’s age, education, work experience, and RFC, the ALJ
determined there were jobs existing in significant numbers in the national economy Plaintiff
could perform, such as a document preparer, a cutter paster, and an eye glass frame polisher.
(ECF No. 11, pp. 28-29, Finding 9). Because jobs exist in significant numbers in the national
economy which Plaintiff can perform, the ALJ also determined Plaintiff had not been under a
disability, as defined by the Act, from November 14, 2013, through February 24, 2015, the
date of the ALJ’s decision. (ECF No. 11, p. 29, Finding 10).
Thereafter, on April 15, 2015, Plaintiff requested a review by the Appeals Council
(ECF. No. 11, p. 17). The Appeals Council denied this request on March 18, 2016. (ECF No.
11, pp. 5-9). On May 20, 2016, Plaintiff filed the present appeal with this Court. (ECF No. 1).
The parties consented to the jurisdiction of this Court on June 10, 2016. (ECF No. 7). This case
is now ready for decision.
This Court’s role is to determine whether substantial evidence supports the
Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th
Cir. 2011). We must affirm the ALJ’s decision if the record contains substantial evidence to
support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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.
Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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, we must affirm the ALJ’s decision. Id.
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. § 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. § 1382c(a)(3)(D). A Plaintiff must
show that her disability, not simply her 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 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(a)(4).
Only if she reaches the final stage does the fact finder consider 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(a)(4)(v).
Plaintiff raises three issues on appeal: 1) the ALJ committed reversible error in not
finding Plaintiff’s impairments met or equaled Listing 1.04A; 2) the ALJ improperly evaluated
Plaintiff’s impairments and subjective complaints by failing to consider evidence from other
sources in violation of Social Security Ruling 96-7p and 06-3p; and 3) on numerous occasions
the ALJ either misinterpreted the evidence or relied on factually incorrect evidence in assessing
Plaintiff’s RFC and subjective complaints. (ECF No. 12). Upon review of these claims, this
Court determines the ALJ failed to properly evaluate Plaintiff’s severe impairments with
regard to Listing 1.04A, and that the record requires further development of Plaintiff’s alleged
motor loss with sensory or reflex loss. Accordingly, this Court will only address this argument
A claimant seeking benefits has the burden of proving her impairment meets or equals
a listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004); See also Carlson v. Astrue,
604 F.3d 589, 593 (8th Cir. 2010). “To meet a listing, an impairment must meet all of the
listing’s specified criteria.” Johnson, 390 F.3d at 1070. Furthermore, the question is whether
the ALJ “consider[ed] evidence of a listed impairment and concluded that there was no
showing on th[e] record that the claimant’s impairments . . . m[et] or are equivalent to any of
the listed impairments. Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006) (internal
quotations omitted). Although it is preferable an ALJ explicitly state the reasons a claimant
failed to meet a listing, the ALJ’s conclusion may be upheld if the record supports it. Id.; See
also Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001).
Listing 1.04A requires the following:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise of a nerve root (including
the cauda equine) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine)
20 C.F.R. Pt. 404, Subpt. P, App 1, § 1.04A. The ALJ determined Plaintiff’s spine impairment
did not meet or equal Listing 1.04A “because it is not associated with evidence of nerve root
compression characterized by neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied
by sensory or reflex loss and a positive straight leg raising test (sitting and supine). (ECF No.
11, p. 25).
In the present case, the record does not support the ALJ’s overly broad conclusion that
Plaintiff does not meet the majority of the criteria of Listing 1.04. The record contains
numerous records which show Plaintiff suffered a disorder of the spine resulting in
compromise of a nerve root or the spinal cord, and evidence of nerve root compression
characterized by neuro-anatomic distribution of pain, limitation of motion of her spine, and
positive straight-leg raising tests. (ECF No. 11, pp. 297, 299-300, 303, 307, 311, 314, 327,
335-36, 366). Plaintiff sought relief through epidural injection on September 8, 2014, and then
nerve blocks on September 25, 2014, and October 9, 2014. (ECF No. 11, pp. 363-559).
Individually, Plaintiff’s symptoms wax and wane over time. We note, however, that “[b]ecause
abnormal physical findings may be intermittent, their presence over a period of time must be
established by a record of ongoing management and evaluation.” 20 C.F.R. Pt. 404, Subpt. P,
App1, § 1.00(D) (Musculoskeletal System). Upon review of the record as a whole, the record
is underdeveloped with regard to Plaintiff’s alleged motor loss with sensory or reflex loss.
The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47
F.3d 935, 938 (8th Cir. 1995); Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000). This can
be done by re-contacting medical sources and by ordering additional consultative
examinations, if necessary. See 20 C.F.R. § 404.1512. The ALJ’s duty to fully and fairly
develop the record is independent of Plaintiff’s burden to press her case. Vossen v. Astrue, 612
F.3d 1011, 1016 (8th Cir. 2010). However, the ALJ is not required to function as Plaintiff’s
substitute counsel, but only to develop a reasonably complete record. See Shannon v. Chater,
54 F.3d 484, 488 (8th Cir. 1995) (“reversal due to failure to develop the record is only
warranted where such failure is unfair or prejudicial”). “The regulations do not require the
Secretary or the ALJ to order a consultative evaluation of every alleged impairment. They
simply grant the ALJ the authority to do so if the existing medical sources do not contain
sufficient evidence to make a determination.” Matthews v. Bowen, 879 F.2d 423, 424 (8th Cir.
1989). “There is no bright line rule indicating when the Commissioner has or has not
adequately developed the record; rather, such an assessment is made on a case-by-case basis.”
Mans v. Colvin, No. 13-CV-2103, 2014 WL 3689797 at *4 (W.D. Ark., July 24, 2014)
(quoting Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994).
The record contains evidence Plaintiff’s spine impairment may have met or equaled the
criteria of Listing 1.04A, but the existing medical sources do not contain sufficient evidence
to make a determination. The record contains two important notes with regard to Plaintiff’s
alleged motor loss with sensory or reflex loss. On August 14, 2014, Dr. Barry Katz, one of
Plaintiff’s treating physicians, noted Plaintiff suffered hypoesthesia on the right. (ECF No. 11,
pp. 296-97). Approximately two months later, on October 28, 2014, Dr. Miles Johnson
performed EMG testing. (ECF No. 11, p. 326-32). During his physical examination of Plaintiff,
he noted decreased sensation to light touch in Plaintiff’s posterior right leg and right foot. (ECF
No. 11, p. 327). Diagnostic testing revealed “H-reflex latency was prolonged on the right as
compared to the left,” and “EMG examination of the right lower extremity is significant for
abnormal spontaneous potentials being noted in the right medial gastrocs.” (ECF No. 11, p.
327). While this evidence suggests Plaintiff suffered some motor loss with sensory or reflex
loss, it is insufficient to make a determination. Notably, the non-examining State agency
consultants did not have these records before them at the initial or reconsideration phases of
Plaintiff’s claim, and the record does not contain the opinion of any other medical expert. (ECF
No. 11, pp. 83-105). Upon review of the record as a whole, this failure to fully and fairly
develop the record was prejudicial to Plaintiff.
Based on the foregoing, on remand the ALJ is ordered to send Plaintiff for a new
consultative examination conducted by her treating physician, Dr. Katz, and direct Dr. Katz to
provide a Medical Source Statement and RFC Assessment of Plaintiff with specific findings
as to Listing 1.04A. Dr. Katz shall be provided with all records from Plaintiff’s case relevant
to his evaluation of Plaintiff. Dr. Katz shall also be directed to administer or perform any
medically acceptable clinical and laboratory diagnostic techniques, which he determines is
appropriate to evaluate Plaintiff’s alleged impairments. Upon receipt of these records and
assessments, Plaintiff shall then be given the opportunity to appear and testify at a new
administrative hearing regarding her application for benefits.
The ALJ shall then return to step three of the sequential evaluation process and
determine whether any of Plaintiff’s medically determinable impairments, either alone or in
combination, meet or medically equal the criteria of an impairment in the Listings. Should the
ALJ then determine Plaintiff’s impairments or the combination of her impairments are not of
a severity to meet or medically equal the criteria of an impairment in the Listings, he shall
determine Plaintiff’s RFC. Then, the ALJ shall procure the expert testimony of a VE and
present to him or her a hypothetical question which includes those impairments that the ALJ
finds are substantially supported by the record as a whole and are indicated in the ALJ’s RFC
Accordingly, having carefully reviewed the record, the undersigned finds that the ALJ's
decision is not supported by substantial evidence, and therefore, the denial of benefits to
Plaintiff should be and hereby is reversed and remanded to the Commissioner for further
consideration pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED this 7th day of April, 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE
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