Fason v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 10, 2014. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
BRANDY KAYE FASON
vs.

PLAINTIFF
Civil No. 6:13-cv-06067

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Brandy Kaye Fason (“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 her
applications for Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), 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. 7.1 Pursuant to this authority, the Court issues this memorandum opinion and
orders the entry of a final judgment in this matter.
1. Background:
Plaintiff protectively filed an application for DIB and SSI on June 29, 2010. (Tr. 12, 118128). Plaintiff alleged she was disabled due to scoliosis, fibromyalgia, and back problems. (Tr.
157). Plaintiff alleged an onset date of February 1, 2005. (Tr. 12). These applications were denied
initially and again upon reconsideration. (Tr. 12). Thereafter, Plaintiff requested an administrative

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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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hearing on her applications and this hearing request was granted. (Tr. 90-91).
Plaintiff’s administrative hearing was held on December 7, 2011. (Tr. 28-71). Plaintiff was
present and was represented by counsel, Sherri McDonough, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Mack Welch testified at this hearing. Id. At the time of this hearing,
Plaintiff was thirty-two (32) years old, which is defined as a “younger person” under 20 C.F.R. §
404.1563(c), and had a GED with two years of college with a computer information systems degree.
(Tr. 32-33).
On May 22, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB and SSI. (Tr. 12-24). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2009. (Tr. 14, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since February 1, 2005. (Tr. 14,
Finding 2).
The ALJ determined Plaintiff had the severe impairment of levo-scoliosis with fibromyalgia.
(Tr. 14, Finding 3). The ALJ then determined Plaintiff’s impairments did not meet or medically
equal the requirements of any of the Listing of Impairments in Appendix 1 to Subpart P of
Regulations No. 4 (“Listings”). (Tr. 14-15, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 15-22). First, the ALJ indicated he 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 the full range of light work. (Tr. 15, Finding 5).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 22, Finding 6). The
ALJ found Plaintiff able to perform her PRW as a cashier II, waitress, and hotel desk clerk. Id.

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Given this, the ALJ determined Plaintiff had not been under a disability as defined in the Act from
February 1, 2005 through the date of his decision. (Tr. 23, Finding 7).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 6-7). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On June 19, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on June 20, 2013. ECF No. 7. Both Parties have filed
appeal briefs. ECF Nos. 10, 11. 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
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

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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).
3. Discussion:
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 10, Pg. 10-18. Specifically, Plaintiff claims the ALJ

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erred: (1) by failing to assess the combination of Plaintiff’s impairments, (2) in the credibility
determination of Plaintiff, (3) in the RFC determination of Plaintiff, and (4) in failing to give proper
treatment to 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. 11. Because this Court finds the ALJ failed to give
proper treatment to the opinions of Plaintiff’s treating physician, this Court will only address this
issue.
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)).
Dr. Kevin Rudder, of Orthopaedic Associates of Arkansas, has been treating Plaintiff since
June 28, 2007. (Tr. 247). On that date, Plaintiff was seen with complaints of low back pain, right
buttock pain, and bilateral thigh pain. Id. X-rays showed scoliosis and evidence of some
degenerative disc disease in the lumbar spine. Id.
From 2007 through the end of 2011, Plaintiff was being treated by Dr. Rudder. (Tr. 236-

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247), 271-273, 290-293, 296-303). On June 11, 2008, Plaintiff was diagnosed with fibromyalgia by
Dr. Rudder. (Tr. 242). Plaintiff’s symptoms continued to increase throughout his treatment of
Plaintiff. In 2010 and 2011 Plaintiff was to be seen at regular three month intervals. (Tr. 236-237,
271-273, 296-303).
Finally, on November 30, 2011, Dr. Rudder completed a Medical Assessment of Ability to
Perform Work Related Activities. (Tr. 307). According to that report, Plaintiff could only lift up
to ten pounds occasionally, sit for two hours and stand for one in an eight-hour workday, and could
never climb or balance, and could have no exposure to heights, vibrations, and moving machinery.
Id.
The ALJ stated he gave only limited weight to the opinions of Dr. Rudder because his
conclusions were inconsistent with the medical record. (Tr. 21). Instead, the ALJ relied upon the
opinions of a one time exam by an orthopedic surgeon, radiology reports, and an emergency room
report. (Tr. 18-21).
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. Rudder’s findings. See Brown, 611 F.3d at 951-52. According to the ALJ he
attempted to contact Dr. Rudder regarding his findings, but no response had been received. (Tr. 21).
Given the significant findings of Dr. Rudder and his long standing relationship with Plaintiff,
perhaps additional effort should be made to make contact with Dr. Rudder.
Substantial evidence does not support the ALJ’s decision of Plaintiff being not disabled
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because the ALJ failed to properly analyze the opinions of Plaintiff’s treating physician, Dr. Rudder.
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 these opinions.
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 10th day of July 2014.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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