Bailey v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 11, 2012. (dmc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

LAWRENCE GREGORY BAILEY

v.

PLAINTIFF

CIVIL NO. 11-6023

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Lawrence Gregory Bailey, 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 his claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and 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).
I.

Procedural Background:
Plaintiff protectively filed his current applications for DIB and SSI on June 2, 2008,

alleging an inability to work since February 28, 2007, due to back pain, a massive brain injury,
headaches, seizures and high cholesterol. (Tr. 141, 146, 177). For DIB purposes, Plaintiff
maintained insured status through December 31, 2010. An administrative hearing was held on
November 4, 2009, at which Plaintiff appeared with counsel and testified. (Tr. 26-66).

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By written decision dated February 7, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 11).
Specifically, the ALJ found Plaintiff had the following impairments:
multiple thoracic compression fractures (well healed) with chronic back pain and
osteoporosis. He also has the following non-severe impairments: active drug
seeking behavior and a history of seizures and gunshot wound to the head.
However, the medical evidence since his alleged onset date does not document
any problems with his head injury. His seizures appear to be well controlled on
medication and he has worked at the substantial gainful activity level since his
1987 gunshot wound. His back pain causes significant work-related limitations
and is therefore considered a severe impairment (20 CFR 404.1520(c) and
416.920(c)).
(Tr. 11). 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. 11). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
perform the full range of light work as defined in 20 CFR 404.1567(b) and
416.967(b). “Light” jobs involve lifting no more than twenty pounds at a time
with frequent lifting or carrying of objects weighing up to ten pounds. A job in
this category may require a good deal of walking or standing or sitting most of
the time with some pushing and pulling of arm and leg controls.
(Tr. 12). The ALJ, with the use of the Medical-Vocational Guidelines (Grids), found Plaintiff
was not disabled. (Tr. 19).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on March 17, 2011. (Tr. 2-4). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8,9).

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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 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 his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him 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 his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
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The Commissioner’s regulations require him 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 his 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 his age, education, and experience. See 20 C.F.R. §§ 404.1520, 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 his residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520, 416.920.
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). A disability
claimant has the burden of establishing his or her RFC. See Masterson v. Barnhart, 363 F.3d 731,
737 (8th Cir.2004). “The ALJ determines a claimant’s RFC based on all relevant evidence in
the record, including medical records, observations of treating physicians and others, and the
claimant’s own descriptions of his or her limitations.” Eichelberger v. Barnhart, 390 F.3d 584,
591 (8th Cir. 2004); Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). 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
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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).
In determining Plaintiff could perform a full range of light work, it appears the ALJ relied
on RFC assessments completed by non-examining medical consultants, Drs. William Paule and
Sandra Eames, on February 2, 2009, and April 2, 2009, respectively. (Tr. 362-372, 423-425).
The Court notes the opinion of a consulting physician who examined Plaintiff once, or not at all,
does not generally constitute substantial evidence. See Jenkins v. Apfel, 196 F.3d 922, 925 (8th
Cir. 1999).
When addressing Plaintiff’s thoracic back pain, the ALJ found that, as pointed out by Dr.
Paule, the medical evidence failed to show that Plaintiff had severe kyphosis1 on any physical
exam. (Tr. 16). A review of the medical evidence revealed that Dr. Stefano M. Sinicropi, one
of Plaintiff’s treating physicians, noted on three occasions, August 13, 2008, August 20, 2008,
and September 3, 2008, that he measured Plaintiff and found that Plaintiff had 100 degrees of
kyphosis which was considered “severely kyphotic,” and that this was “very very painful” to
Plaintiff. (Tr. 252, 257, 260 ). Dr. Adam J. Locketz also noted that Plaintiff had been diagnosed
with 100 degrees of kyphosis. (Tr. 253). As the medical evidence revealed that Plaintiff does
in fact have severe kyphosis, the Court believes remand is necessary for the ALJ to more fully
and fairly develop the record regarding Plaintiff’s back impairment.
On remand, the ALJ is directed to address interrogatories to the physicians who have
evaluated and/or treated Plaintiff, including Dr. Sinicropi and Dr. Steven T. McCabe, asking the

1

Kyphosis is defined as an abnormally increased convexity in the curvature of the thoracic spinal column. See
Dorland's Illustrated Medication, Dictionary at 1007, 31st Edition (2007).

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physicians to review Plaintiff's medical records; to complete a RFC assessment regarding
Plaintiff's capabilities during the time period in question; and to give the objective basis for their
opinions 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 orthopedic exam,
in which, the consultative examiner should be asked to review the medical evidence of record,
perform a physical examination and appropriate testing needed to properly diagnosis Plaintiff's
condition and level of pain, and complete a medical assessment of Plaintiff's ability 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.
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 11th day of July, 2012.

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

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