# George v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · June 29, 2018

URL: https://www.frixlaw.com/law-library/cases/10009312

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** June 29, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.”
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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.
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(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

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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)

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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

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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.
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10009312. Public record. Not legal advice.