The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
SUSAN LOGUE PLAINTIFF
v. CIVIL NO. 21-5021
KILOLO KIJAKAZI,1 Acting Commissioner
0F
Social Security Administration DEFENDANT
MEMORANDUM OPINION
Plaintiff, Susan Logue, 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 a 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 November 1, 2017,
and November 3, 2017, respectively, alleging an inability to work since October 27, 2017, due to
a back injury, a neck injury, depression, high blood pressure, arthritis, chronic pain, migraines and
short-term memory loss. (Tr. 221-222, 367). An administrative telephonic hearing was held on
1 Kilolo Kijakazi, has been appointed to serve as Acting Commissioner of Social Security, and is
substituted as Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
April 8, 2019, at which Plaintiff appeared with counsel and testified. (Tr. 175-220). By written
decision dated July 26, 2019, the ALJ found Plaintiff maintained the RFC to perform sedentary
work with limitations. (Tr. 17-27). Plaintiff requested a review of the hearing decision by the
Appeals Council, who granted Plaintiff’s request for review August 29, 2020. (Tr. 34).
By written decision dated December 23, 2020, the Appeals Council found that during the
relevant time period, Plaintiff had an impairment or combination of impairments that were severe.
(Tr. 7). Specifically, the Appeal Council found Plaintiff had the following severe impairments:
mild degenerative disk disease of the bilateral knees, obesity, degenerative disk disease of the
lumbar spine, a small disk bulge of the lumbar spine impinging on a nerve root, mild to moderate
degenerative disk disease of the cervical spine, cervicalgia and cervical radiculitis. However, after
reviewing all 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. (Id.). The Appeals Council found Plaintiff retained the
residual functional capacity (RFC) to:
[P]erform sedentary work as define in 20 CFR 404.1567(a) and 416.967(a) except
that she cannot climb ladders, ropes and scaffolds but can occasionally balance,
stoop, kneel, crouch, crawl and climb ramps and stairs.
(Id.). Finally, the ALJ determined Plaintiff could perform her past relevant work as an accounts
payable clerk, a full charge bookkeeper, a receptionist, and a degree clerk. (Id.).
Subsequently, Plaintiff filed this action. (ECF No. 2). This case is before the undersigned
pursuant to the consent of the parties. (ECF No. 6). Both parties have filed appeal briefs, and the
case is now ready for decision. (ECF Nos. 18, 19).
II. Applicable Law:
The Court reviews “the ALJ’s decision to deny disability insurance benefits de novo to
ensure that there was no legal error that the findings of fact are supported by substantial evidence
on the record as a whole.” Brown v. Colvin, 825 F. 3d 936, 939 (8th Cir. 2016). 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 ALJ’s decision if the record contains substantial evidence to support
it. Lawson v. Colvin, 807 F.3d 962, 964 (8th Cir. 2015). 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.
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 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 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:
Of particular concern to the undersigned is the Appeals Council’s RFC determination.
RFC is the most 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 includes medical records,
observations of treating physicians and others, and the claimant’s own descriptions of 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 resulting 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 Appeals Council’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 (8th Cir. 2003).
In the present case, the Appeals Council determined Plaintiff maintained the RFC to
perform sedentary work with limitations. After reviewing the record, the undersigned is troubled
by the fact that no examining or non-examining medical professional opined as to Plaintiff’s
capabilities to perform in the workplace subsequent to a March 6, 2019, MRI of the lumbar spine
that revealed a right paracentral disc protrusion at L5-S1 impinging on the lateral recess, likely
affecting the traversing right S1 nerve root; and mild spinal stenosis at L3-L4 and L4-L5 secondary
to degenerative changes. (Tr. 812). Plaintiff complained of both numbness and tingling in her
extremities, and Dr. Patrick Tyler Greenburg indicated that both the mild stenosis of the spinal
canal and the disc protrusion, could cause compression of the nerves, as well as pain, weakness,
and numbness. Id. The record also revealed Plaintiff was diagnosed with fibromyalgia on May 3,
2019, by Dr. Kabir Nazmul; however, this medical evidence was not considered when determining
Plaintiff’s RFC. (Tr. 4, 54). After reviewing the record as a whole, the Court finds remand
necessary so that the ALJ can more fully and fairly develop the record regarding Plaintiff’s
impairments.
On remand, the ALJ is directed to address interrogatories to a medical professional
requesting that said physician review Plaintiff's medical records; complete a RFC assessment
regarding Plaintiff's capabilities during the time period in question; and give the objective basis
for the opinion so that an informed decision can be made regarding Plaintiff's ability to perform
basic work activities on a sustained basis. 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.
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 14th day of April 2022.
Christy Comstock
/s/
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE