Taylor v. Social Security Administration Commissioner

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
ROBERT D. TAYLOR 	PLAINTIFF
v. 	CIVIL NO. 22-cv-5139
KILOLO KIJAKAZI, Acting Commissioner 	DEFENDANT
Social Security Administration
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Robert D. Taylor, brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a decision of the Commissioner of the Social Security Administration (Commissioner)
denying his claim for a period of disability and disability insurance benefits (“DIB”) under Title
II of the Social Security Act (hereinafter “the Act”), 42 U.S.C. § 423(d)(1)(A). 	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 application for DIB on April 29, 2020. (Tr. 12). In his
application, Plaintiff alleged disability beginning on March 18, 2019, due to bipolar disorder,
spinal cord injury, and depression. (Tr. 12, 271). An administrative hearing was held on January
27, 2020, at which Plaintiff appeared with counsel and testified. (Tr. 12, 30–60).
On February 25, 2022, the ALJ issued an unfavorable decision. (Tr. 12-24). The ALJ found
that during the relevant time period, Plaintiff had an impairment or combination of impairments
that were severe: osteoarthritis/degenerative disc disease of the lumbar spine, degenerative joint
disease of bilateral knees, gastroesophageal reflux disease, hypertension, narcolepsy, insomnia,
hypothyroidism, obesity, bipolar disorder, generalized anxiety disorder, and obsessive-compulsive
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disorder. (Tr. 14–15). However, after reviewing all of the evidence presented, the ALJ determined
that Plaintiff’s impairments did not meet or equal the severity of any impairment listed in the
Listing of Impairments found in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 15–17). The ALJ
found that Plaintiff retained the residual functional capacity (RFC) to:
[P]erform light work as defined in 20 CFR 404.1567(b) except the claimant can
only occasionally climb, balance, stoop, kneel, crouch, and crawl; the claimant
must avoid concentrated exposure to hazards, i.e., no work at unprotected heights,
no work around dangerous moving unprotected machinery, no driving as a part of
work; and the claimant can perform work where there is occasional routine
interpersonal contact, where tasks involve more than one or two steps, but are not
complex, where the complexity of tasks is learned by experience, with several
variables and use of judgment is within limits, and where the supervision required
is little for the routine tasks but detailed for the non-routine tasks.
(Tr. 17–21).
With the help of a vocational expert, the ALJ found Plaintiff would be unable to perform
any of his past relevant work but would be able to perform the representative occupations of
merchandise marker, mail sorter, and routing clerk. (Tr. 21–24). The ALJ found Plaintiff was not
disabled from April 29, 2020, through the date of his decision. (Tr. 24). Plaintiff requested a review
of the hearing decision by the Appeals Council, which was denied on January 7, 2021. (Tr. 1–4).
Subsequently, Plaintiff filed this action. (ECF No. 2). This matter is before the undersigned for
report and recommendation pursuant to 28 USC §636 (b). Both parties have filed appeal briefs.
(ECF Nos. 19, 23, 24). The Court has reviewed the entire transcript. The complete set of facts and
arguments are presented in the parties’ briefs and are repeated here only to the extent necessary.
II. 	Applicable Law:
This court’s role is to determine whether substantial evidence supports the Commissioner’s
findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). We must affirm the
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ALJ’s decision if the record contains substantial evidence to support it. Blackburn v. Colvin, 761
F.3d 853, 858 (8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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, we must affirm the ALJ’s
decision. Id.
A claimant for Social Security disability benefits has the burden of proving his or her
disability by establishing a physical or mental disability that has lasted at least one year and that
prevents him or her 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), 1382c(a)(3)(D). Plaintiff
must show that his or her disability, not simply their impairment, has lasted for at least twelve
consecutive months.
The Commissioner’s regulations require her 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 or her 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
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given his or her age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Only if the ALJ reaches the final stage does the fact finder consider the Plaintiff’s age, education,
and work experience in light of his or her residual functional capacity. See McCoy v. Schweiker,
683 F.2d 1138, 1141-42 (8th Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d
504, 505 (8th Cir. 2000); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
III. 	Discussion
Plaintiff raises the following on appeal: 1) whether the ALJ erred by failing to consider
Plaintiff’s use of a cane; 2) whether the ALJ erred in failing to properly evaluate the medical
opinion evidence and ignored the functional capacity evaluation; 3) whether the ALJ violated
Plaintiff’s due process rights and the equal protection clause by denying him a full and fair hearing
and failed to fulfill his burden at step five; and 4) whether the ALJ erred in failing to identify jobs
in the region in which Plaintiff lives, or in several regions in the national economy. (ECF No. 19).
Of particular concern to the undersigned is the ALJ’s RFC determination. RFC is the most
that a person can do despite that person’s limitations. 20 C.F.R. §404.1545(a)(1). It is assessed
using all relevant evidence in the record. Id. This assessment includes medical records,
observations of treating physicians and others, and the claimant’s own description of his or her
limitations. Guilliams v. Barnhart, 393 F. 3d 798, 801 (8th Cir. 2005). Eichelberger v. Barnhart,
390 F.3d 584, 591 (8th Cir. 2004). Limitations arising 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 supported by medical evidence that addresses the claimant’s ability to
function in the workplace. Lewis v. Barnhart, 353 F.3d 642, 646 (8 th Cir. 2003). “[T]he ALJ is
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[also] required to set forth specifically a claimant’s limitations and to determine how those
limitations affect his RFC.” Id.
In this case, four state agency medical consultants reviewed Plaintiff’s records and offered
their opinions as to Plaintiff’s RFC. (Tr. 20, 62–77, 79–94). On August 31, 2020, Teresa Kramer,
Ph.D., opined that the evidence supported a capacity for work where interpersonal contact is
routine and tasks involve more than one or two steps but are not complex, e.g., grocery checker;
complexity of tasks is learned by experience with several variables, judgment within limits;
supervision is little for routine but detailed for non-routine and noted this was semiskilled work.
(Tr. 70). On October 23, 2020, Laurie Clemens, Ph.D., reviewed the updated evidence and
concurred with Dr. Kramer’s opinion. (Tr. 88). The ALJ found these opinions to be persuasive and
adopted very similar limitations in his RFC findings. (Tr. 17, 20). On September 3, 2020, Denise
Greenwood, 	M.D., 	opined 	that 	the 	evidence 	supported 	light 	work 	with 	no 	postural 	or
environmental limitations. (Tr. 72–73). On October 23, 2020, Clarence Ballard, M.D., reviewed
Plaintiff’s updated records and concurred with Dr. Greenwood’s opinion. (Tr. 90–91). The ALJ
considered these opinions and found them to be persuasive but found that Plaintiff would have
additional limitations considering additional medical evidence submitted at the hearing level. (Tr.
20). In his RFC determination, the ALJ found Plaintiff could perform light work with additional
postural and environmental restrictions as described above. (Tr. 17). However, the ALJ did not
discuss which impairments or limitations required these additional limitations, or which medical
evidence supported these limitations. (Tr. 17–21).
The ALJ appropriately did not consider the determination made by the Department of
Veteran Affairs that Plaintiff had a service-connected disability, as determinations made by other
agencies under different standards are neither valuable nor persuasive. The ALJ considered the
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opinion offered by Joel Sebag, DPT and found his opinion unpersuasive as he saw Plaintiff only
one time and did not provide explanation to support his findings and conclusions. (Tr. 21). The
ALJ further found that Mr. Sebag’s opinions were not consistent with the opinions offered by the
state agency medical consultants or any objective findings in the record from the claimant’s
treating medical sources. However, the ALJ did not account for the fact that Mr. Sebag’s
examination took place on April 20, 2021, six months after the nonexamining physicians offered
their reconsideration opinions and one week after Plaintiff’s physician prescribed him a cane. (Tr.
1094–1130, 1164). The ALJ did not discuss the functional capacity evaluation performed by Joel
Sebag at any point during the RFC determination, including in considering whether his opinion
was consistent with objective medical evidence in the record.
While an ALJ is under no specific duty to procure an RFC assessment from each treating
physician, the ALJ must base his opinion on some medical evidence that addresses Plaintiff’s
ability to function in the workplace. 	Perks v. Astrue, 687 F.3d at 1092; See Hildebrand v.
Barnhart, 302 F.3d 836, 838 (8th Cir. 2002) (court may remand for taking of further evidence
where ALJ fails to develop record fully); and, Haley v. Massanari, 258 F.3d 742, 749 (8th
Cir.2001) (reversible error for ALJ not to order consultative examination where such evaluation is
necessary to make informed decision). In this case, the ALJ did not address the only examining
evidence that addressed Plaintiff’s ability to function in the workplace, and did not consider
Plaintiff’s use of a prescribed cane.
The Court believes remand is necessary for the ALJ to more fully and fairly develop the
record regarding Plaintiff’s RFC. On remand, the ALJ is directed to obtain RFC assessments from
the Plaintiff's treating physicians, allowing the treating physicians the opportunity to provide an
explanation for the limitations assigned should the ALJ have questions. If those physicians are
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unwilling or otherwise unable to complete the RFC assessments, then the ALJ is directed to order
a consultative examination, complete with a detailed RFC assessment of the Plaintiff's limitations.
The ALJ should then reassess the Plaintiff's RFC, taking into account all of his impairments, and
conduct a thorough step four and, if necessary, step five analysis.
IV. 	Conclusion
Based on the foregoing, it is recommended that the Commissioner’s final decision be
reversed, and the case remanded back to the Commissioner for further consideration pursuant to
sentence four of 42 U.S.C. § 405(g).
The parties have fourteen (14) days from receipt of this report and recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
IT IS SO ORDERED this 6th day of July 2023.
/s/ 	.
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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