Terry v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on October 26, 2011. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
MARK A. TERRY
Civil No. 6:10-cv-06078
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Mark A. Terry (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying his applications for
Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), and a period of
disability under Titles II and XVI of the Act. The parties have consented to the jurisdiction of a
magistrate judge to conduct any and all proceedings in this case, including conducting the trial,
ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 5.1
Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final
judgment in this matter.
Plaintiff protectively filed his disability applications on October 17, 2006 (DIB) and on
October 19, 2006 (SSI). (Tr. 99-108). In his applications, Plaintiff alleged he was disabled due to
a shattered hip and head trauma from a motorcycle accident. (Tr. 116). Plaintiff alleged an onset date
of November 6, 2005. (Tr. 99, 105, 116). These applications were denied initially and again on
The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript pages
for this case are referenced by the designation “Tr.”
reconsideration. (Tr. 58-61).
Thereafter, Plaintiff requested an administrative hearing on his applications, and this hearing
request was granted. (Tr. 76-98). An administrative hearing was held on December 2, 2008 in Hot
Springs, Arkansas. (Tr. 23-57). At the administrative hearing, Plaintiff was present and was
represented by counsel, James Street. Id. Plaintiff and Vocational Expert (“VE”) William David
Elmore testified at this hearing. Id. On the date of this hearing, Plaintiff was forty (40) years old,
which is defined as a “younger person” under 20 C.F.R. § 404.1563(c) (2008), and had completed
high school. (Tr. 28).
On January 5, 2009, the ALJ entered an unfavorable decision on Plaintiff’s disability
applications. (Tr. 12-22). In this decision, the ALJ determined Plaintiff met the disability insured
status requirements of the Act on November 6, 2005 and thereafter through December 31, 2011. (Tr.
20, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity
(“SGA”) since his alleged onset date of November 6, 2005. (Tr. 20, Finding 2). The ALJ determined
Plaintiff had the following severe impairments:
The medical evidence establishes that the claimant has status post comminuted
fracture of the posterior column of the right acetabulum, right femur fracture, and right
heel starbust fracture status post multiple trauma from motorcycle accident . . . .
(Tr. 21, Finding 3). The ALJ, however, also determined Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Id.
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 21, Findings 4-5). First, the ALJ evaluated Plaintiff’s subjective complaints and determined they
were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC for the
The claimant has the residual functional capacity to perform work-related activities
except for work involving lifting more than 20 pounds occasionally, 10 pounds
frequently; standing and/or walking with normal breaks for a total of about 6 hours in
an 8-hour workday; sitting with normal breaks for a total of about 6 hours in an 8-hour
workday; and is capable of unlimited use of hand controls, but has limited use of foot
controls (not even occasionally); and could never climb stairs or ladders, and only
occasionally balance, stoop, kneel, crouch, and never crawl. He would have no
manipulative, visual, or environment limitations.
(Tr. 21, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined his PRW
included work as a scrap iron salvage cutter, crane operator, and tack welder. (Tr. 21, Finding 6).
Based upon his RFC, the ALJ determined Plaintiff did not retain the capacity to perform any of this
PRW. Id. The ALJ did, however, determine Plaintiff retained the capacity to perform other work
existing in significant numbers in the national economy. (Tr. 21, Finding 11). The ALJ based this
determination upon the testimony of the VE. Id. Specifically, the VE testified that a hypothetical
person with Plaintiff’s limitations retained the capacity to perform work such as a shipping order clerk
(light, semi-skilled) with approximately 3,000 such jobs in the State of Arkansas and 300,000 such
jobs in the nation and general office clerk (light, semi-skilled) with approximately 2,700 such jobs
in the State of Arkansas and 350,000 such jobs in the nation. (Tr. 21, Finding 11). Because Plaintiff
retained the capacity to perform other work existing in significant numbers in the national economy,
the ALJ determined Plaintiff was not under a “disability,” as defined by the Act, at any time through
the date of his decision. (Tr. 21, Finding 12).
On March 5, 2009, Plaintiff requested that the Appeals Counil review the ALJ’s unfavorable
disability determination. See 20 C.F.R. § 404.968. On September 24, 2010, the Appeals Council
declined to review the ALJ’s disability determination. (Tr. 1-4). On October 19, 2010, Plaintiff filed
the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on December
8, 2010. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 8, 11. This case is now ready
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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. See 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 his or her disability by establishing a physical or mental disability that lasted at least one year
and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160
F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a
“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 his or her
disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See
42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses the
familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged
in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly
limits the claimant’s physical or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is disabled without regard to age, education, and work experience);
(4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past
relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
In his appeal brief, Plaintiff alleges the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 8 at 1-20. Specifically, Plaintiff claims the ALJ failed
to evaluate the severity of his impairments, and the ALJ also erred by failing to give proper
consideration to his claims of chronic pain. Id. In response, Defendant argues that the ALJ’s RFC
determination is supported by substantial evidence in the record, and the ALJ properly considered
Plaintiff’s subjective complaints of disabling pain. ECF No. 11. Because Plaintiff’s medical records
demonstrate the ALJ’s RFC determination is not supported by substantial evidence in the record,this
Court will only address this issue on appeal.
A disability is defined as a physical or mental impairment which lasts at least one year and
prevents the claimant from engaging in any substantial gainful activity. See Cox v. Apfel, 160 F.3d
1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In the present action,
Plaintiff’s medical records indicate his RFC was very limited from November 6, 2005 (his alleged
onset date) through at least January 3, 2007, and he may have been disabled during this time period.
Notably, Plaintiff’s medical records establish he was involved in a motorcycle accident on November
6, 2005, his alleged onset date. (Tr. 190-191). As a result of that accident, Plaintiff suffered a deep
laceration in his right foot and a fracture in his right leg. (Tr. 190-191, 346). Plaintiff underwent
surgery for the fracture in his right leg. (Tr. 215-216).
Plaintiff used a wheelchair and walker for several months after the accident. (Tr. 341-343).
Plaintiff was put on nonweightbearing status for 12 weeks after the accident. (Tr. 352). On January
26, 2006, Plaintiff was reportedly healing well, but Plaintiff was still on nonweightbearing status.
(Tr. 357). Indeed, at that time, Plaintiff still had not resumed any of his normal activities. Id. On
February 10, 2006, Plaintiff was evaluated by Dr. Williams S. Cole, M.D. for his hypertension. (Tr.
184). During that appointment, Dr. Cole found Plaintiff was “walking with a significant limp
favoring his right leg with one crutch.” Id.
On March 16, 2006, Plaintiff’s leg fracture was reportedly “well healed.” (Tr. 370). Plaintiff,
however, still reported pain from “prolonged sitting or standing.” Id. On April 12, 2006, Plaintiff
reported suffering from severe pain in his right hip. (Tr. 372-375). On April 26, 2006, Plaintiff
reported pain with “prolonged standing” and stated that “with certain movement he does feel some
posterior hip pain.” (Tr. 376). On June 22, 2006, Plaintiff again reported suffering from severe right
hip pain. (Tr. 379). On June 28, 2006, Plaintiff reported having significant pain after walking and
standing for a “fairly short period of time.” (Tr. 380). Plaintiff was prescribed six weeks of
“aggressive physical therapy,” and Plaintiff’s physician stated that Plaintiff “should be able to return
to work after this.” Id.
Plaintiff again reported severe hip pain on September 27, 2006 and on October 4, 2006. (Tr.
382-384, 386-387). On October 4, 2006, as a result of his continued pain, Plaintiff had an MRI of
his right hip. (Tr. 388-392). Plaintiff was found to have Stage 1 avascular necrosis (“AVN”) of the
femoral head causing a loss of blood supply to the bone. See The Merck Manual 310-312 (18th ed.
2006) (noting that one of the symptoms of AVN is bone or joint pain). To treat this AVN and severe
pain, Plaintiff again underwent surgery. (Tr. 442-443). Specifically, on December 4, 2006, Plaintiff
underwent right hip core decompression. Id. On January 3, 2007, Plaintiff was seen during a followup appointment after his right hip core decompression. (Tr. 457-458). During that appointment,
Plaintiff did not have any complaints of pain, but Plaintiff was still not able to place any weight on
his hip. Id.
Based upon these medical records, this Court finds the ALJ’s disability determination–that
Plaintiff was not disabled at any time from his alleged onset date through the date of his decision–
is not supported by substantial evidence in the record. Plaintiff’s medical records demonstrate that
he was involved in a motorcycle accident on November 6, 2005, he underwent surgery, he continued
to have complaints of severe pain, and he finally underwent a second surgery on his hip on December
4, 2006. Both surgeries resulted from this motorcycle accident. As of January 3, 2007, Plaintiff was
still recovering from his second surgery. Because this time period is over one year, Plaintiff’s RFC
should be reevaluated during this time period, and Plaintiff might be entitled to a closed period of
disability. See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). Thus, this Court finds the ALJ’s disability determination is not supported by
substantial evidence in the record and must be reversed and remanded.
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is not supported by substantial evidence and should be reversed and remanded. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 26th day of October, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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