# Henley v. Social Security Administration Commissioner > District Court, W.D. Arkansas · April 29, 2022 URL: https://www.frixlaw.com/law-library/cases/10011696 ## Case - **Court:** District Court, W.D. Arkansas - **Decided:** April 29, 2022 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10011696 ## Opinion text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10011696. Public record. Not legal advice.