Willingham v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 29, 2014. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
KIMBERLY KAY WILLINGHAM
vs.

PLAINTIFF

Civil No. 6:13-cv-06009

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Kimberly Kay Willingham (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of
the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final
decision of the Commissioner of the Social Security Administration (“SSA”) denying her application
for Supplemental Security Income (“SSI”) and a period of disability under Title 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. 8.1 Pursuant to this authority, the Court issues this
memorandum opinion and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff filed her application for SSI on July 20, 2010. (Tr. 10, 87-88). Plaintiff alleged she
was disabled due to Hepatitis C, carpal tunnel in both wrists, TMJ, a pinched nerve in right shoulder,
and pain on right side. (Tr. 113). Plaintiff alleged an onset date of March 31, 2009. (Tr. 113).
Plaintiff’s application was denied initially and at the reconsideration level. (Tr. 42-49). Thereafter,

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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.”

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Plaintiff requested an administrative hearing on her application and this hearing request was granted.
(Tr. 52).
Plaintiff’s administrative hearing was held on October 6, 2011. (Tr. 21-37). Plaintiff was
present and was represented by her attorney, Eric Worsham, at this hearing. See id. Plaintiff
testified at this hearing. See id. On the date of this hearing, Plaintiff was forty-nine (49) years old,
which is defined as a “younger person” under 20 C.F.R. § 404.1563(c) (2009), and had a high school
education. (Tr. 25).
On November 23, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s
application for SSI. (Tr. 10-17). The ALJ determined Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since July 20, 2010. (Tr. 12, Finding 1). The ALJ also determined
Plaintiff had the severe impairments of Hepatitis C and arthritis. (Tr. 12, Finding 2). The ALJ also
determined, however, that Plaintiff did not have an impairment or a combination of impairments that
met or medically equaled one of the listed impairments in the Listing of Impairments in Appendix
1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 12, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 12-16). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints pursuant to the
requirements of 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 and found her claimed limitations
were not totally credible. (Tr. 13). Second, the ALJ determined, based upon his review of Plaintiff’s
subjective complaints, the hearing testimony, and the evidence in the record, that Plaintiff retained
the RFC for the full range of light work. (Tr. 12, Finding 4).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff
had no PRW. (Tr. 16, Finding 5). The ALJ, however, also determined there was other work existing
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in significant numbers in the national economy Plaintiff could perform. (Tr. 16, Finding 9). The
ALJ then used Medical-Vocational Guidelines Rule 202.20 to reach a conclusion of “not disabled,”
based on Plaintiff’s age, education, vocational background, and residual functional capacity. See 20
C.F.R. pt. 404, subpt. P, app. 2, § 201.28. (Tr. 17). The ALJ then determined Plaintiff had not been
under a “disability,” as defined by the Act, at any time through the date of his decision. (Tr. 17,
Finding 10).
On December 28, 2011, Plaintiff requested the Appeals Council review the ALJ’s
unfavorable decision. (Tr. 5). See 20 C.F.R. § 404.968. On December 7, 2012, the Appeals Council
declined to review the ALJ’s unfavorable decision. (Tr. 1-3). On February 4, 2013, Plaintiff filed
the present appeal. ECF No. 1. The parties consented to the jurisdiction of this Court on February
28, 2013. ECF No. 8. Both parties have filed appeal briefs. ECF Nos. 11, 12. This case is now
ready for decision.
2. Applicable Law:
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
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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
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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).
3. Discussion:
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 11 at 5-15. Specifically, Plaintiff claims the ALJ erred
(1) in his use of Grid Rule 202.20 and (2) by improperly evaluating the opinions of Plaintiff’s
treating physician. Id. In response, the Defendant argues the ALJ did not err in any of his findings.
ECF No. 12.
Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required
to determine a claimant’s RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must
be based on medical evidence that addresses the claimant’s ability to function in the workplace. See
Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). The ALJ should consider “‘all the evidence
in the record’ in determining the RFC, including ‘the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.’” Stormo v. Barnhart,
377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002)).
The Plaintiff has the burden of producing documents and evidence to support his or her claimed
RFC. See Cox, 160 F.3d at1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The ALJ, however, bears the primary responsibility for making the RFC determination and
for ensuring there is “some medical evidence” regarding the claimant’s “ability to function in the
workplace” that supports the RFC determination. Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir.
2001). Furthermore, this Court is required to affirm the ALJ’s RFC determination if that
determination is supported by substantial evidence on the record as a whole. See McKinney v. Apfel,
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228 F.3d 860, 862 (8th Cir. 2000).
In this matter, the ALJ determined Plaintiff had the RFC for the full range of light work. (Tr.
12, Finding 4). Plaintiff claims substantial evidence does not support the ALJ’s RFC determination
because the ALJ erred in his treatment of the opinions of her treating physician. Defendant argues
the ALJ considered these opinions but properly disregarded them for being inconsistent with the
evidence in the record.
Social Security Regulations and case law state that a treating physician's opinion will be
granted “controlling weight,” provided it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
record.” See SSR 96-2p; Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000)(citing 20 C.F.R.
§ 404.1527(d)(2)). An ALJ is required to give good reasons for the particular weight given to a
treating physician’s evaluation. See Prosch, 201 F.3d at1013 (citing 20 C.F.R § 404.1527(d)(2), and
SSR 96-2p). An ALJ may disregard the opinion of a treating physician only where other medical
assessments “are supported by better or more thorough medical evidence,” or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions. Id. at 1013
(quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), and Cruze v. Chater, 85 F.3d 1320,
1324-25 (8th Cir. 1996)).
According to the medical record, Plaintiff was first seen by treating physician, Dr. Gary
Gehrki on January 5, 2010. (Tr. 161). Plaintiff was seen for chronic pain related to Hepatitis C,
right upper quadrant pain, TMJ pain and right wrist pain. Id. From 2010 through 2011, Plaintiff was
seen in the office by Dr. Gehrki for among other things; forearm swelling, poor grip, arm weakness,
arthritis, swollen knees and elbows and pain associated with Hepatitis C. (Tr. 169-172, 186-188,
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207-209).
On September 27, 2011, Dr. Gehrki prepared a Hepatitis C. Medical Source Statement. (Tr.
210-213). Dr. Gehrki indicated Plaintiff had a guarded prognosis. (Tr. 210). Dr. Gehrki also
indicated Plaintiff could sit a total of 4 hours of an eight hour day and stand less than 2 hours of an
eight hour day; work approximately 20 hours per week; could occasionally left under 10 pounds and
never lift over 20 pounds; and would need 5 unscheduled breaks during the work day. (Tr. 211-213).
Dr. Gehrki also prepared an Arthritis RFC Questionnaire on September 27, 2011, which included
a diagnosis of rheumatoid arthritis. (Tr. 214-220). Dr. Gehrki indicated Plaintiff experienced
chronic fatigue, right upper quadrant pain, and muscle and joint aches as a result of arthritis. (Tr.
214). Dr. Gehrki’s report found similar limitations as he stated in the Hepatitis C. Medical Source
Statement. (Tr. 215-220).
Although the ALJ did mention Plaintiff’s treatment by Dr. Gehrki, the ALJ gave these
opinions little weight, only stating they were not supported by objective medical evidence and there
was no corroborating evaluation to substantiate a diagnosis of rheumatoid arthritis. (Tr. 15).
The ALJ has the responsibility to determine which findings are inconsistent and which
opinions should be given greater weight than other opinions. See Brown v. Astrue, 611 F.3d 941,
951-52. However, when an ALJ determines that a treating physician’s opinion should be discounted,
“he should give good reasons for doing so.” Id. (internal quotation and citation omitted). In this
matter, The ALJ’s complete lack of analysis and review certainly does not amount to “good reasons”
for discounting Dr. Gehrki’s findings. See Brown, 611 F.3d at 951-52.
Further, the ALJ was provided with lab results showing a significantly elevated Rheumatoid
Factor (i.e., 29.7 IU/mL) and Sedimentation Rate (i.e., 52 mm/hr.). (Tr. 207-09). The ALJ did not
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mention these elevated readings; yet, questioned the diagnosis of Rheumatoid Arthritis.
Substantial evidence does not support the ALJ’s decision of Plaintiff being not disabled
because the ALJ failed to properly analyze the opinions of Plaintiff’s treating physician, Dr. Gehrki.
Because the ALJ did not properly review the opinions of Plaintiff’s treating physician, this case
should be reversed and remanded for proper review and analysis of the opinions of Dr. Gehrki.
4. Conclusion:
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 29th day of January 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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