IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION CLIFTON GEORGE, on behalf of GWENDOLYN GEORGE, Deceased PLAINTIFF
vs. Civil No. 4:17-cv-04077 NANCY A. BERRYHILL DEFENDANT Acting Commissioner, Social Security Administration MEMORANDUM OPINION Clifton George, on behalf of, Gwendolyn George (“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 application 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. 5.1 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 an application for DIB on September 2, 2013 and for SSI on September 4, 2013. (Tr. 48). Plaintiff alleged she was disabled due to congestive heart failure, high blood pressure, and osteoarthritis. (Tr. 319). Plaintiff alleged an onset date of August 28, 2013. (Tr. 48). 1 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.” 1 These applications were denied initially and again upon reconsideration. (Tr. 123-189, 194-201). Thereafter, Plaintiff requested an administrative hearing on her applications and this hearing request was granted. (Tr. 202-204). Plaintiff’s administrative hearing was held on July 7, 2016. (Tr. 92-122). Plaintiff was present and was represented by Greg Giles at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Melissa Brassfield testified at this hearing. Id. At the time of this hearing, Plaintiff was
forty-three (43) years old and had a GED with approximately 100 college hours. (Tr. 96-97). On August 11, 2016, the ALJ entered an unfavorable decision denying Plaintiff’s application for DIB and SSI. (Tr. 48-64). In this decision, the ALJ determined the Plaintiff met the insured status requirements of the Act through December 31, 2013. (Tr. 50, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since August 28, 2013. (Tr. 50, Finding 2). The ALJ determined Plaintiff had the severe impairments of nouischemic dilated cardiomyopathy; bilateral knee degenerative joint disease, status post left total knee arthroplasty in
December 2013; lumbar spine degenerative disc disease; and bilateral hip arthritis. (Tr. 50, 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. 55, Finding 4). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC. (Tr. 55-63). 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 with sedentary work and can occasionally climb, balance, stoop, kneel, crouch, and crawl. 2 (Tr. 55, Finding 5). The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 63, Finding 6). The ALJ found Plaintiff was not capable of performing her PRW. Id. The ALJ, however, also determined there was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 63, Finding 10). The ALJ based this determination upon the testimony of the
VE. Id. Specifically, the VE testified that given all Plaintiff's vocational factors, a hypothetical individual would be able to perform the requirements of representative occupations such as food and beverage order clerk with approximately 40,000 such jobs in the nation and document scanner with approximately 57,000 such jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff had not been under a disability as defined by the Act from August 28, 2013, through the date of the decision. (Tr. 64, Finding 11). Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision. (Tr. 258-259). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-7). On September 12, 2017, Plaintiff filed the present appeal. ECF No. 1. Clifton
George, the deceased Plaintiff’s husband, brought this appeal on behalf of his wife who died August 10, 2016, as a result of hypertensive cardiovascular disease. (Tr. 1461). The Parties consented to the jurisdiction of this Court. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 13, 15. 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
3 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 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).
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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION CLIFTON GEORGE, on behalf of GWENDOLYN GEORGE, Deceased PLAINTIFF
vs. Civil No. 4:17-cv-04077 NANCY A. BERRYHILL DEFENDANT Acting Commissioner, Social Security Administration MEMORANDUM OPINION Clifton George, on behalf of, Gwendolyn George (“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 application 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. 5.1 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 an application for DIB on September 2, 2013 and for SSI on September 4, 2013. (Tr. 48). Plaintiff alleged she was disabled due to congestive heart failure, high blood pressure, and osteoarthritis. (Tr. 319). Plaintiff alleged an onset date of August 28, 2013. (Tr. 48). 1 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.” 1 These applications were denied initially and again upon reconsideration. (Tr. 123-189, 194-201). Thereafter, Plaintiff requested an administrative hearing on her applications and this hearing request was granted. (Tr. 202-204). Plaintiff’s administrative hearing was held on July 7, 2016. (Tr. 92-122). Plaintiff was present and was represented by Greg Giles at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Melissa Brassfield testified at this hearing. Id. At the time of this hearing, Plaintiff was
forty-three (43) years old and had a GED with approximately 100 college hours. (Tr. 96-97). On August 11, 2016, the ALJ entered an unfavorable decision denying Plaintiff’s application for DIB and SSI. (Tr. 48-64). In this decision, the ALJ determined the Plaintiff met the insured status requirements of the Act through December 31, 2013. (Tr. 50, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since August 28, 2013. (Tr. 50, Finding 2). The ALJ determined Plaintiff had the severe impairments of nouischemic dilated cardiomyopathy; bilateral knee degenerative joint disease, status post left total knee arthroplasty in
December 2013; lumbar spine degenerative disc disease; and bilateral hip arthritis. (Tr. 50, 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. 55, Finding 4). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC. (Tr. 55-63). 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 with sedentary work and can occasionally climb, balance, stoop, kneel, crouch, and crawl. 2 (Tr. 55, Finding 5). The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 63, Finding 6). The ALJ found Plaintiff was not capable of performing her PRW. Id. The ALJ, however, also determined there was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 63, Finding 10). The ALJ based this determination upon the testimony of the
VE. Id. Specifically, the VE testified that given all Plaintiff's vocational factors, a hypothetical individual would be able to perform the requirements of representative occupations such as food and beverage order clerk with approximately 40,000 such jobs in the nation and document scanner with approximately 57,000 such jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff had not been under a disability as defined by the Act from August 28, 2013, through the date of the decision. (Tr. 64, Finding 11). Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision. (Tr. 258-259). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-7). On September 12, 2017, Plaintiff filed the present appeal. ECF No. 1. Clifton
George, the deceased Plaintiff’s husband, brought this appeal on behalf of his wife who died August 10, 2016, as a result of hypertensive cardiovascular disease. (Tr. 1461). The Parties consented to the jurisdiction of this Court. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 13, 15. 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
3 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 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)
4 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. 13, Pg. 3-18. Specifically, Plaintiff claims the ALJ erred: (1) in failing to find Plaintiff met a Listing, (2) in the RFC determination, and (3) in failing to give proper weight 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. 15. Because this Court finds the ALJ erred in the weight given to the opinions of a 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
5 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)). Plaintiff had been treated by orthopedic surgeon Dr. Jeffrey DeHaan since July 3, 2013 for issues with her knees, shoulders, back pain, and hip pain. (Tr. 942-968, 1035-1055, 1239-1262, 1274-1299, 1304-1313). In a report dated August 28, 2013, Plaintiff was seen for left knee pain. (Tr. 966-968). At that time, Dr. Dehaan indicated Plaintiff would not be able to return to work due to pain and discomfort. (Tr. 967). On December 12, 2013, Dr. Dehaan performed a left knee arthroplasty on Plaintiff. (Tr. 945). On May 4, 2016, Dr. DeHaan prepared an RFC Assessment. (Tr. 1301-1303). Dr. Dehaan found Plaintiff was restricted to less than sedentary work with the need for 15-20 minute breaks
every one to two hours, can never stoop, kneel, crawl or climb ladders, an inability to perform a competitive job that required activity on a sustained basis, and the likelihood for more than three absences a month. Id. The ALJ gave little weight to the opinions of Dr. DeHaan. (Tr. 61). 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, 951-952. 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 erred in discounting Dr. DeHaan’s findings. See Brown, 611 F.3d at 951-952. At the very least, if the ALJ
found this record was unclear, ambiguous, or inconclusive, the ALJ should have re-contacted Dr. 6 DeHaan. 20 C.F.R. § 404.1512(e) (requiring the ALJ to re-contact the claimant’s treating physician or psychologist or other medical source where the information the SSA receives from that source is inadequate to determine whether the claimant is disabled). 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. 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 29th day of June 2018.
/s/ Barry A. Bryant HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE