Parkhurst v. Berryhill

Filing 21

ORDER Affirming in part and Reversing in part the decision of Commissioner re 3 SOCIAL SECURITY COMPLAINT. Signed on 9/24/2018 by District Judge Roseann Ketchmark. (Stout, Courtney)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JAMIE L. PARKHURST,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SSA;
Defendant.

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ORDER

No.2:17-CV-04087-RK

Before the Court is Plaintiff’s appeal seeking judicial review of a final decision of the
Defendant Social Security Administration denying disability benefits.

The decision of the

Administrative Law Judge (“ALJ”) is AFFIRMED in part and REVERSED in part.
Standard of Review
The Court’s review of the ALJ’s decision to deny disability benefits is limited to
determining if the decision “complies with the relevant legal requirements and is supported by
substantial evidence in the record as a whole.”

Halverson v. Astrue, 600 F.3d 922, 929

(8th Cir. 2010) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008)); see also
42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance of the evidence, but is
‘such relevant evidence as a reasonable mind would find adequate to support the [ALJ’s]
conclusion.’” Grable v. Colvin, 770 F.3d 1196, 1201 (8th Cir. 2014) (quoting Davis v. Apfel, 239
F.3d 962, 966 (8th Cir. 2001)). In determining whether existing evidence is substantial, the Court
takes into account evidence that both supports and detracts from the ALJ’s findings. Cline v.
Colvin, 771 F.3d 1098, 1102 (8th Cir. 2014) (quotation marks omitted). “If the ALJ’s decision is
supported by substantial evidence, [the Court] may not reverse even if substantial evidence would
support the opposite outcome or [the Court] would have decided differently.” Smith v. Colvin, 756
F.3d 621, 625 (8th Cir. 2014) (quoting Davis, 239 F.3d at 966). The Court does not re-weigh the
evidence presented to the ALJ. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)
(citing Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003)). The Court should “defer heavily

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to the findings and conclusions of the [ALJ].” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010)
(citation omitted).
Discussion
By way of overview, the ALJ found that Plaintiff suffers from the following severe
impairments: degenerative disc disease of the cervical spine, migraines, post-concussion
headaches, anxiety disorder, bipolar disorder, major depressive disorder, panic disorder, and
attention deficit disorder. However, the ALJ found that none of Plaintiff’s impairments, whether
considered alone or in combination, meet or medically equals the criteria of one of the listed
impairments in 20 CFR Pt. 404. Subpt. P, App. 1 (“Listing”). Additionally, the ALJ found that
despite her limitations, Plaintiff retained the residual functional capacity (“RFC”) to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) with limitations. The ALJ found Plaintiff
was able to perform past relevant work as a cleaner/housekeeper. Finally, the ALJ found that
considering Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that the Plaintiff can perform.
On appeal, Plaintiff presents the following arguments in support of reversal: (1) whether
the ALJ erred in failing to consider Dr. Lucio’s medical opinion, and (2) whether remand is
required to consider evidence submitted after the hearing but before the ALJ rendered his decision.
First, Plaintiff argues the ALJ erred in failing to consider Dr. Lucio’s medical opinion. The
ALJ omitted the opinion of Dr. Lucio from the RFC determination and the ALJ’s decision without
explanation.1 Dr. Lucio opined that Plaintiff could not lift more than five pounds at any given
time.2 The RFC determination provided, and the VE testified, that Plaintiff can perform light work
with limitations.

Light work involves lifting ten pounds frequently and twenty pounds

occasionally. 20 C.F.R § 404.1567. This is problematic because Dr. Lucio’s opinion disqualifies
Plaintiff from performing light work. “The adjudicator generally should explain the weight given
to opinions from these sources or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's
reasoning, when such opinions may have an effect on the outcome of the case.” 20 C.F.R.

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Dr. Lucio’s opinion was provided to the ALJ five days after the hearing but before the ALJ issued
his disability determination.
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At the hearing, Plaintiff also testified she could not lift more than five pounds at a time; however,
the ALJ properly discounted Plaintiff’s credibility and corresponding testimony.

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§ 404.1567. See Willcockson v. Astrue, 540 F.3d 878, 880 (8th Cir. 2008) (the court determined
remand was proper when the court “cannot determine from the record whether the ALJ overlooked
these statements, gave them some weight, or completely disregarded them”). See also Trotter v.
Colvin, 2015 WL 5785548, at *3 (W.D. Mo. Oct. 2, 2015) (remand was required when the ALJ
gave a medical opinion weight but did not provide any explanation for omitting portions of the
opinion); Woods v. Astrue, 780 F. Supp. 2d 904, 913-15 (E.D. Mo. Jan. 26, 2011) (remand was
required when the ALJ provided weight to the treating physician’s opinion, but disregarded the
physician’s limitations without explanation). Therefore, because the ALJ omitted Dr. Lucio’s
opinion from the ALJ’s decision entirely, without explanation, remand is necessary to reevaluate
Dr. Lucio’s opinion.
Next, Plaintiff argues remand is appropriate for consideration of new evidence submitted
after the hearing date but before the ALJ issued his decision. The Appeals Council evaluated the
entire record, including this additional evidence, but denied review in accordance with the
regulations. See 20 C.F.R. § 404.970(b). If the Appeals Council determines the ALJ’s decision,
including newly submitted evidence, is contrary to the weight of the evidence, remand is
inappropriate. Cunningham v. Apfel, 222 F.3d 496, 503 (8th Cir. 2000). See also Scott v. Astrue,
2010 WL 3940812, at *3 (W.D. Mo. Oct. 6, 2010) (“the evidence considered at the administrative
level, so a remand is not required just so the evidence can be considered” by the ALJ); Davidson
v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007) (“[w]here, as here, the Appeals Council considers new
evidence but denies review, we must determine whether the ALJ’s decision was supported by
substantial evidence on the record as a whole, including the new evidence”). Accordingly, because
the Appeals Council considered the newly submitted evidence, remand is inappropriate on this
issue.

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Conclusion
Having carefully reviewed the record before the Court and the parties’ submissions on
appeal, the Court AFFIRMS in part and REVERSES in part ALJ’s decision under sentence
four of 42 U.S.C. § 405(g). On remand, the ALJ should reevaluate the medical opinion of Dr.
Lucio. If the ALJ determines that Dr. Lucio’s opinion should be disregarded, the ALJ should
provide specific, reasoned explanations for that decision.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: September 24, 2018

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