The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
VALERIE A. ROSS PLAINTIFF
v. CIVIL NO. 18-3095
ANDREW M. SAUL, Commissioner
Social Security Administration DEFENDANT
MEMORANDUM OPINION
Plaintiff, Valerie A. Ross, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claims for period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and
XVI of the Social Security Act (Act). 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 her current applications for DIB and SSI on April 26, 2016,
alleging an inability to work since June 1, 2006,1 due to neck pain and mobility problems;
right leg pain and mobility problems; lower back pain and mobility problems; very anxious
and confused in crowds; hard time remembering; inability to run; and inability to stand for
long periods of time. (Tr. 399, 535, 542). An administrative hearing was held on September
12, 2017, at which Plaintiff appeared with counsel and testified. (Tr. 362-395).
1 At the administrative hearing on September 12, 2017, Plaintiff, through her attorney, amended her alleged onset date to
March 1, 2016. (Tr. 339, 365).
By written decision dated February 23, 2018, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe.
(Tr. 341). Specifically, the ALJ found Plaintiff had the following severe impairments:
degenerative disc disease of the cervical spine and a disorder of the lumbar spine. However,
after reviewing all of the evidence presented, the ALJ determined that Plaintiff’s impairments
did not meet or equal the level of severity of any impairment listed in the Listing of
Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 344). The ALJ found
Plaintiff retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except the claimant can occasionally reach overhead.
(Tr. 345). With the help of a vocational expert, the ALJ determined Plaintiff could perform
work as a document preparer, an addresser and a table worker/inspector. (Tr. 352).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which after reviewing additional evidence submitted by Plaintiff, denied that request on July
26, 2018. (Tr. 1-6). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before
the undersigned pursuant to the consent of the parties. (Doc. 7). Both parties have filed
appeal briefs, and the case is now ready for decision. (Docs. 12, 13).
II. Applicable Law:
This Court's role is to determine whether the Commissioner's findings are supported
by substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2002). 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. The ALJ's
decision must be affirmed if the record contains substantial evidence to support it. Edwards
v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). 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. Haley v. Massanari,
258 F.3d 742, 747 (8th Cir. 2001). 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, the decision of the ALJ must be affirmed. 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 her disability by establishing a physical or mental disability that has lasted
at least one year and that prevents 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). 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). A Plaintiff must show that her disability, not simply her impairment,
has lasted for at least twelve consecutive months.
The Commissioner’s regulations require him 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 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 given her age, education, and experience. See
20 C.F.R. §§ 404.1520, 416.920. Only if the final stage is reached does the fact finder
consider the Plaintiff’s age, education, and work experience in light of 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, 416.920.
III. Discussion:
When the Appeals Council has considered material new evidence and nonetheless
declined review, the ALJ's decision becomes the final action of the Commissioner. The
Court then has no jurisdiction to review the Appeals Council's action because it is a nonfinal
agency action. See Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). At this point,
the Court’s task is only to decide whether the ALJ's decision is supported by substantial
evidence in the record as a whole, including the new evidence made part of the record by the
Appeals Council that was not before the ALJ. As the United States Court of Appeals for the
Eighth Circuit has noted, "this [is] a peculiar task for a reviewing court." Riley v. Shalala, 18
F.3d 619, 622 (8th Cir.1994). However, once it is clear that the Appeals Council considered
the new evidence, the Court must factor in the evidence and determine whether the ALJ's
decision is still supported by substantial evidence. This requires the Court to speculate on
how the ALJ would have weighed the newly submitted evidence had it been available at the
initial hearing. Flynn v. Chater, 107 F.3d 617, 621 (8th Cir.1997). Thus, the Court has
endeavored to perform this function with respect to the newly submitted evidence.
The new evidence submitted to the Appeals Council includes medical records dated
prior to the ALJ’s February 23, 2018, administrative decision. The Court notes that Plaintiff
was involved in motor vehicle accident on January 21, 2018, that resulted in the fracture and
displacement of her right hip, a fractured clavicle, rib fractures and multiple contusions. (Tr.
19-186). Had the ALJ had this medical evidence before him when making the decision in
this case, the outcome may very well have been different. Accordingly, the Court believes
that remand is necessary to allow the ALJ to consider this new and material evidence. With
this evidence, the ALJ should then re-evaluate Plaintiff's RFC and specifically list in a
hypothetical to a vocational expert any limitations that are indicated in the RFC assessment
and supported by the evidence.
The undersigned acknowledges that the ALJ=s decision may be the same after proper
analysis. Nonetheless, proper analysis must occur. Groeper v. Sullivan, 932 F.2d 1234,
1239 (8th Cir. 1991).
IV. Conclusion:
Accordingly, the Court concludes that the ALJ’s decision is not supported by
substantial evidence, and therefore, the denial of benefits to the Plaintiff should be reversed
and this matter should be remanded to the Commissioner for further consideration pursuant
to sentence four of 42 U.S.C. § 405(g).
DATED this 10th day of January 2020.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE