The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
REBECCA L. HENLEY PLAINTIFF
v. CIVIL NO. 21-3016
KILOLO KIJAKAZI,1 Acting Commissioner
0F
Social Security Administration DEFENDANT
MEMORANDUM OPINION
Plaintiff, Rebecca L. Henley, 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 June 6, 2019,
alleging an inability to work since June 5, 2019, due to back problems, anxiety, chronic headaches,
high cholesterol and seasonal allergies. (Tr. 70, 176, 183). An administrative telephonic hearing
was held on August 14, 2020, at which Plaintiff appeared with counsel and testified. (Tr. 26-60).
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.
By written decision dated September 18, 2020, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 13).
Specifically, the ALJ found Plaintiff had the following severe impairments: spine disorders and
migraines. 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. 14). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) and 416.968(a) except
can occasionally climb, balance, crawl, kneel, stoop, and crouch.
(Tr. 14). With the help of a vocational expert, the ALJ determined Plaintiff could perform work as
a fishing reel assembler, a nut sorter, and a document preparer. (Tr. 20).
Plaintiff then requested a review of the hearing decision by the Appeals Council, who
denied that request on January 25, 2021. (Tr. 1-4). Subsequently, Plaintiff filed this action. (ECF
No. 2). This case is before the undersigned pursuant to the consent of the parties. (ECF No. 5).
Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 18, 19).
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs and are repeated here only to the extent necessary.
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 ALJ’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 ALJ’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). “To find a claimant has the
RFC to perform a certain type of work, the claimant must have the ability to perform the requisite
acts day in and day out, in the sometimes competitive and stressful conditions in which real people
work in the real world. Reed v. Barnhart, 399 F.3d 917, 923 (8th Cir. 2005) (citations omitted).
After reviewing the record, the undersigned is troubled by the fact that no examining and
non-examining medical professional opined as to Plaintiff’s capabilities to perform in the
workplace subsequent to her reports of increased pain, falls, and right foot numbness in late 2019.2
1F
2 The Court notes the non-examining medical consultants completed the RFC assessments on
August 23, 2019, and October 28, 2019, respectively. (Tr. 70, 92).
Medical records reveal Plaintiff underwent lumbar spine surgery in June of 2019, after which she
reported improvement in her symptoms. However, by late 2019, and early 2020, the medical
records reveal Plaintiff sought treatment for increased back pain, along with right foot numbness,
wrist pain after a fall, and right leg numbness. (Tr. 530, 550, 569). In April of 2020, Dr. Allan C.
Gocio, Plaintiff’s neurosurgeon, noted that a CT myelogram showed a possible loosening of S1
screws bilaterally, which was suggestive of pseudoarthrosis. (Tr. 565). At a follow-up appointment
with Dr. Gocio in July of 2020, Plaintiff reported experiencing frequent falls, and upon
examination, was noted to have diffuse deconditioning with mild weakness in the upper and lower
extremities; a motor exam showing diffuse deconditioning; a straight leg raise reproducing hip and
thigh pain on the right; a sensory decrease in a stocking distribution in the right lower extremity;
and decreased deep tendon reflexes throughout. (Tr. 564). Dr. Gocio diagnosed Plaintiff with
pseudoarthrosis of the lumbar spine, and recommended Plaintiff continue to use the bone growth
stimulator and to return in two months to assess the fusion mass. Based on the foregoing, 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 29th day of April 2022.
/s/ Meety Cometeck
HON. CHRISTY“COMSTOCK
UNITED STATES MAGISTRATE JUDGE