The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
TAMARA LAWAN JONES PLAINTIFF
vs. Civil No. 4:17-cv-04004
NANCY A. BERRYHILL DEFENDANT
Acting Commissioner, Social Security Administration
MEMORANDUM OPINION
Tamara Lawan Jones (“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”) and a period of disability under Title II 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 protectively filed her disability application on June 3, 2014. (Tr. 21, 169-177).
Plaintiff alleges being disabled due to rheumatoid arthritis, sleeping problems, pain, and depression.
(Tr. 81, 215, 259). Plaintiff alleges an onset date of January 23, 2014. (Tr. 21, 171). The
application was denied initially and again upon reconsideration. (Tr. 80, 93, 107-109, 115-116).
Thereafter, Plaintiff requested an administrative hearing on her denied application. (Tr. 117-
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.”
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118). The administrative law judge (“ALJ”) granted that request and held an administrative video
hearing on May 11, 2016. (Tr. 39-79). The ALJ presided over the hearing from McAlester,
Oklahoma, and the Plaintiff appeared in Texarkana, Arkansas. Id. At the hearing, Plaintiff was
present and was represented by Gregory R. Giles. Id. Vocational Expert (“VE”) Diana L. Kizer also
testified at this hearing. Id.
At this hearing, Plaintiff testified he was thirty (30) years old, which is defined as a “younger
person” under 20 C.F.R. § 404.1563© (DIB). (Tr. 42). As for her level of education, Plaintiff
testified she completed high school. (Tr. 43-44).
After this hearing, on June 13, 2016, the ALJ entered an unfavorable decision denying
Plaintiff’s application for DIB. (Tr. 21-38). In this decision, the ALJ found Plaintiff met the insured
status requirements of the Act through December 31, 2019. (Tr. 23, Finding 1). The ALJ found
Plaintiff had engaged in Substantial Gainful Activity (“SGA”) during the period of October 2014
through December 2014 with earnings of $3,715.00 for the 4th quarter of 2014. (Tr. 23, Finding 2).
However, there has been a continuous 12-month period , during which, Plaintiff did not engage in
SGA. (Tr. 23, Finding 3). The remaining findings address the period the Plaintiff did not engage
in SGA. Id. The ALJ determined Plaintiff had the following severe impairments: inflammatory
arthritis, osteopenia, and major depressive disorder. (Tr. 23-26, Finding 4). Despite being severe,
the ALJ determined these impairments did not meet or medically equal the requirements of any of
the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 26-
28, Finding 5).
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (Tr. 28-36,
Finding 6). First, the ALJ evaluated Plaintiff’s subjective complaints and found her claimed
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limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC
to perform the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the RFC to lift 20 pounds occasionally, and lift and carry 10 pounds
frequently. The claimant can sit, stand and walk up to 6 hours of each activity per
8-hour day. The claimant has unlimited use of feet for foot controls, with occasional
pushing and pulling and overhead reaching with both arms. The claimant has
frequent use of the hands for fingering, feeling, and handling. The claimant has
frequent balancing, stooping, kneeling, crouching, and crawling, with occasional
climbing of ramps, ladders, and scaffolds. In addition, claimant would be limited to
work that is of SVP level 3 or less as defined in the Dictionary of Occupational Titles
(“DOT”) with ability to apply common sense understanding to remember, carry out
detailed written or oral instructions and to set realistic goals and plans independently
of others. (20 C.F.R. 404.1567(b)).
Id.
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff is able
to perform her PRW as a general clerk as it is generally performed. (Tr. 36, Finding 7). The ALJ
also considered whether Plaintiff retained the capacity to perform other work existing in significant
numbers in the national economy. (Tr. 37-38). The VE testified at the administrative hearing
regarding this issue. Id. Based upon that testimony, the ALJ determined alternative findings for step
five of the sequential evaluation process. Id. Plaintiff retained the capacity to perform the following:
(1) unit clerk (light, semi-skilled, SVP 3) with 56,000 such jobs in the national economy; (2)
information clerk (light, semi-skilled, SVP 2) with 53,000 such jobs in the national economy; and
(3) office helper (light, semi-skilled, SVP 2) with 70,000 such jobs in the national economy. Id.
Because Plaintiff retained the capacity to perform this work, the ALJ also determined Plaintiff had
not been under a disability, as defined by the Act, from January 23, 2014 through the date of his
decision. (Tr. 38, Finding 8).
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Thereafter, Plaintiff requested a review by the Appeals Council. (Tr. 14-16, 285). On
January 3, 2017, the Appeals Council denied this request. (Tr. 1-8). On January 19, 2017, Plaintiff
filed the present appeal with this Court. ECF No. 1. The Parties consented to the jurisdiction of this
Court on November 8, 2016. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 11, 12.
This case is now ripe for determination.
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)
(2010); 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
year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,
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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)©. 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 his appeal brief, Plaintiff claims the following: (A) the ALJ erred in finding Plaintiff did
not meet Listing 14.09, (B) the ALJ erred in giving no weight to the opinions provided by Plaintiff’s
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treating rheumatologist, Dr. Jonathan Thomas, M.D., and © the ALJ erred in failing to present a
proper hypothetical to the VE including Plaintiff’s limitations as a result of her rheumatoid arthritis.
ECF No. 11 at 1-20. Upon review, the Court agrees the ALJ improperly evaluated the opinions
provided by Dr. Thomas. Accordingly, the Court will only address the second argument Plaintiff
raised.
Of particular concern to the Court is the lack of weight the ALJ gave to opinions provided
by Dr. Thomas. Plaintiff contends the ALJ addressed the records provided by Dr. Thomas to some
extent, but failed to the discuss the RFC assessment he completed on July 13, 2016. ECF. No. 11
at 12. Plaintiff also alleges it was unclear why the ALJ failed to discuss the entirety of a medical
opinion Dr. Thomas provided in his records on May 12, 2016. ECF No. 11 at 13. Following a
thorough review of the record, the Court finds that remand is necessary.
On October 30, 2012, Plaintiff presented herself to Ms. Teresa D. Browne-Carter, P.A. at
Choctaw Nation Health Center, and complained of painful swelling in her neck, back, arms, and in
multiple joints including her hands, feet, and knees. (Tr. 298). She reported her symptoms started
suddenly three months ago. Id. Plaintiff stated there were times when she could not walk because
of the pain. Id. She was also being treated for depression and insomnia. Id. Ms. Browne-Carter
diagnosed Plaintiff with arthralgia, mood disorder, anemia, and insomnia. Id.
On July 10, 2013, Plaintiff presented herself to the emergency department of Wadley
Regional Medical Center with joint pain and edema in her left upper extremity and right lower
extremity. (Tr. 301-307). Plaintiff was 15 weeks pregnant at the time with her third child. Id.
Plaintiff had a high erythrocyte sedimentation (“SED’) rate of 35 while admitted to the hospital. Id.
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Upon discharge the next day, Plaintiff was instructed to follow up with a private physician for a
referral to a rheumatologist. Id.
On February 18, 2014, Plaintiff returned to Choctaw Nation Health Center and saw Dr. John
Hoskins, M.D. (Tr. 339-342, 350-353, 360-362). She reported that since giving birth recently her
pain has been much worse with severe and painful swelling all over, her knees and hands the worst,
she cannot close her hands, and she was no longer working. Id. An X-ray of her bilateral hands
showed interval erosion base of the second proximal phalanx, juxa articular osteopenia, and the
impression was that the findings were consistent with rheumatoid arthritis. Id. Dr. Hoskins
diagnosed her with rheumatoid arthritis, mood disorder, bilateral knee pain, anemia, and being
overweight. Id. Dr. Hoskins noted that he was not a rheumatologist, but he was prescribing
Plaquenil, a disease-modifying antirheumatic drug (“DMARD”), because Plaintiff was suffering and
had no other means to access a rheumatologist in the near future. Id. Plaintiff was also prescribed
Prednisone with a tapering schedule, Naproxen, and bilateral knee steroid injections were
administered. Id.
On March 25, 2014, Plaintiff reported to Dr. Hoskins that her symptoms improved when
taking Prednisone, but when the tapering process ended her pain worsened. (Tr. 343-345, 358-359).
Dr. Hoskins changed Plaintiff’s medication regimen by continuing Plaquenil, starting Sulfasalazine,
another DMARD, restarting Prednisone for two weeks, discontinuing Naproxen, and prescribing
Ibuprofen and Ferrous Sulfate. Id. Plaintiff continued to see Dr. Hoskins for follow up visits in
April 2014. (Tr. 346-349, 354-357).
On May 6, 2016, Plaintiff presented herself to Dr. Thomas, a rheumatologist, after a referral
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from her primary care provider due to Plaintiff’s rheumatoid arthritis. (Tr. 404). Plaintiff delivered
her fourth child on December 16, 2015, and her arthritis flared a month later. Id. Plaintiff reported
that since starting Plaquenil she has had frequent headaches and vertigo. Id. She has also not been
sleeping well due to arthritis pain. Id. Plaintiff stated she currently has pain and stiffness in both
hands, wrists, ankles, and feet. Id. Her stiffness lasts longer than two hours in the morning, and she
has significant trouble performing her activities of daily living, especially those involving fine motor
movements with her hands. Id. Plaintiff was also positive for fatigue. Id. Plaintiff was under
tremendous stress with the expansion of her family, inability to work due to arthritis, she will lose
insurance in a few months, and she was in the process of getting a divorce. Id. Dr. Thomas noted
Plaintiff was tearful and obviously depressed due to her current situation. Id.
Upon examination, Plaintiff had mild synovitis in the elbows; moderate synovial thickening
and synovitis in both wrists as well as metacarpophalangeal joints 2-5 and proximal interphalangeal
joints 2-5 of both hands causing decreased range of motion in the wrists and mild decreased grip and
curl in the hands; moderate effusions and synovitis in both knees; moderate synovial thickening and
synovitis in both ankles; and mild tenderness with palpation across metatarsophalangeal joints of
both feet. (Tr. 408).
Dr. Thomas diagnosed her with rheumatoid arthritis, screening of respiratory tuberculosis,
long term high risk drug therapy, depression, and insomnia. (Tr. 408-410). Dr. Thomas wrote that
due to Plaintiff’s recent development of moderately severe rheumatoid arthritis which significantly
flared following her recent pregnancy, Dr. Thomas wanted to start a biologic DMARD such as
Actemra in order to achieve quicker control of her arthritis. (Tr. 409). Dr. Thomas also started a low
dose of Prednisone, discontinued Plaquenil due to the side effects, and continued Sulfasalazine. Id.
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Dr. Thomas wrote that if she could not get on Actemra through Choctaw Nation, then she was to
start Humira, and he prescribed Methotrexate and Folate as well. Id. Plaintiff was not a candidate
for potent sleep medication because of her young children. (Tr. 410). Dr. Thomas continued current
depression medications, and noted her depression symptoms would improve as her arthritis
improves. Id. Dr. Thomas explained the severe side effects of the medications he prescribed. Id.
Dr. Thomas assessed that Plaintiff had moderately severe arthritis, she should be considered
100 percent disabled, and she cannot be gainfully employed at this time. Id. Dr. Thomas opined it
could take several months or even a year or two to get her arthritis under control in a perfect
situation, furthermore, considering the severity of her arthritis, she may never be able to control it
enough to be gainfully employed. Id. Dr. Thomas cited to Plaintiff’s divorce and insurance changes
as factors that could contribute to a lack of access or resources to cover the exorbitantly expensive
biologic medications she needs for treatment. Id.
On May 11, 2016, objective testing ordered by Dr. Thomas during the office visit revealed
the following: labs showed Plaintiff had positive antinuclear antibodies (“ANA”) of great than 1:80,
rheumatoid factor greater than 80, and nucleolar pattern of 1:640. (Tr. 423-438). X-rays of
Plaintiff’s bilateral feet showed chronic irregularity and degenerative arthropathy of the fifth
metatarsophalangeal joint in each foot. (Tr. 415-416). An X-ray of the left hand revealed proximal
carpal degenerative arthropathy. (Tr. 417). An X-ray of her right hand showed degenerative changes
in the wrist. (Tr. 418). An X-ray of the left wrist showed degenerative changes most prominent
along the proximal carpal row or radiocarpal joint. (Tr. 421). An X-ray of her right wrist revealed
proximal carpal degenerative arthropathy. (Tr. 422).
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Based on the records, Plaintiff had chronic arthritis pain that was supported with objective
testing. The gaps in her treatment were explained due to two pregnancies during the relevant time
period. Over time, the treatment her physicians prescribed became increasingly aggressive with
severe potential side effects. In light of the medical evidence detailing Plaintiff’s rheumatoid
arthritis, this Court cannot agree with the ALJ’s failure to evaluate the medical opinion provided by
Dr. Thomas on May 6, 2016 because it was supported by more than just Plaintiff’s subjective
complaints.
On July 13, 2016, Dr. Thomas, also provided a detailed physical RFC assessment regarding
Plaintiff’s ability to do work-related activities:
Dr. Thomas found Plaintiff could occasionally lift and/or carry less than 10 pounds,
and frequently lift and/or carry less than 10 pounds. Plaintiff could stand less than
2 hours in an 8-hour workday. Dr. Thomas found Plaintiff could sit less than 6 hours
in an 8-hour workday. Plaintiff would require more than normal break-time
throughout the workday at unexpected intervals during a work shift of 15-30 minutes
every 1-2 hours on an indefinite basis. In addition, Plaintiff could never perform any
postural activities, but she could frequently reach, handle, finger, feel, and push or
pull. Dr. Thomas assessed Plaintiff should avoid all exposure to extreme cold, heat,
wetness, humidity, fumes, odors, dusts, gases, poor ventilation, machinery, and
heights. She was capable of tolerating low stress. Plaintiff should use a cane or other
assistive device at time when occasionally standing or walking. Dr. Thomas found
it was medically necessary for Plaintiff to elevate one or more legs waist high when
sitting in a work setting. Plaintiff’s condition interferes with her ability to keep the
neck in a frequent or constant position. Dr. Thomas assessed Plaintiff cannot do a
full time competitive job that requires activity on a sustained basis. Plaintiff’s
emotional factors also can contribute to the severity of her symptoms and functional
limitations. On average, Plaintiff would miss work more than three times a month
due to impairments, treatment, or side effects of medication.
(Tr. 439-442).
It is acknowledged that a conclusory checkbox form has little evidentiary value when it “cites
no medical evidence, and provides little to no elaboration.” Anderson v. Astrue, 696 F.3d 790, 794
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(8th Cir. 2012) (quoting Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)). Although the RFC
assessment Dr. Thomas made was in a checklist format, he provided explanations for the exertional
limitations he found. Dr. Thomas cited to Plaintiff’s diagnosis of severe rheumatoid arthritis in
support of the assessed limitations. (Tr. 440). Plaintiff’s impairments lasted or can be expected to
last at least 12 months, and the symptoms and limitations Dr. Thomas described started in 2013. (Tr.
441). Dr. Thomas also observed objective signs of pain such as redness, swelling, joint deformity,
and decreased range of motion in Plaintiff’s joints. Id. Dr. Thomas assessed Plaintiff’s pain was
considered severe with a score of 8-10 with 10 being the most severe, meaning she would preclude
the activity precipitating the pain. Id. Dr. Thomas ultimately determined his findings were based
on a reasonable degree of medical certainty. Id. The treatment history provided by Dr. Thomas and
the medical evidence in the record as a whole supported Dr. Thomas’s RFC assessment.
Furthermore, Dr. Thomas is an acceptable medical source that has a treating relationship with
the Plaintiff, and he has specialized knowledge about the medical issues related to rheumatology.
See 20 C.F.R. § 404.1527. In his decision, the ALJ failed to assign any weight to the medical
opinions provided by Dr. Thomas. Nevertheless, the ALJ gave merely diminished or limited weight
to the remaining opinions in the record, including treating sources. (Tr. 32-35). The only opinions
the ALJ accorded significant weight to were the RFC assessments of the full range of light work
provided by non-examining, state agency medical consultants. (Tr. 35). Interestingly, the ALJ
assigned weight to all the opinions in the record except for Dr. Thomas’s medical opinions.
“It is the ALJ’s function to resolve conflicts among the opinions of various treating and
examining physicians.” See Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001). The
opinions provided by Dr. Thomas were crucial parts of the record that deserved development by the
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ALJ. See Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995); Freeman v. Apfel, 208 F.3d 687, 692
(8th Cir. 2000). In assessing his RFC determination, the ALJ relied upon the findings of non-
examining physicians and accorded them significant evidentiary weight. However, the opinions of
consulting, non-examining physicians do not provide substantial evidence to support the ALJ’s RFC
assessment. See Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). Consequently, because the
ALJ failed to evaluate the opinions of a treating specialist, favored assessments by non-examining
physicians, and has provided no other medical evidence which would qualify as substantial evidence,
the Court finds this case should be reversed and remanded.
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 22nd day of March 2018.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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