Richardson v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

ANGELIQUE RICHARDSON PLAINTIFF

v. CIVIL NO. 22-2116

KILOLO KIJAKAZI, Acting Commissioner

Social Security Administration DEFENDANT

MEMORANDUM OPINION

Plaintiff, Angelique Richardson, 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 July 24, 2019,

alleging an inability to work since February 6, 2019, due to high blood pressure, hypertension,

high cholesterol, carpal tunnel syndrome, chronic obstructive pulmonary disease, irritable bowel

syndrome, neuropathy and peripheral neuropathy, anxiety, depression, degenerative disc disease,

sciatica and a mental or psychiatric impairment. (Tr. 169, 323, 330). An administrative telephonic

hearing was held on September 16, 2020, at which Plaintiff appeared with counsel and testified.

(Tr. 89-106). A supplemental telephonic hearing was held on December 8, 2020. (Tr. 109-143).

After the case was reassigned to a different ALJ, a supplemental telephonic hearing was held on

October 21, 2021, at which Plaintiff appeared with counsel and testified. (Tr. 18, 144-167).

By written decision dated December 6, 2021, the ALJ found that during the relevant time

period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 21).

Specifically, the ALJ found Plaintiff had the following severe impairments: obesity and

degenerative disc and joint disease. 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. 25). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:

[P]erform light work as defined in 20 CFR 404.1567(b) and 416.967 (b) except

occasional climb, balance, stoop, kneel, crouch and crawl; and occasional overhead

reaching bilaterally.

(Tr. 25-26). With the help of a vocational expert, the ALJ determined Plaintiff could perform her

past relevant work as a cashier. (Tr. 30).

Plaintiff then requested a review of the hearing decision by the Appeals Council, who after

reviewing additional evidence submitted by Plaintiff denied that request on June 16, 2022. (Tr. 1-

6). Subsequently, Plaintiff filed this action. (ECF No. 2). This case is before the undersigned

pursuant to the consent of the parties. (ECF No. 4). Both parties have filed appeal briefs, and the

case is now ready for decision. (ECF Nos. 13, 15).

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. Id.

III. Discussion:

Plaintiff argues the following issues on appeal: A) Plaintiff has additional severe

impairments; B) The RFC is inconsistent with the evidence; and C) Plaintiff cannot return to her

past work. (ECF No. 13).

The regulations provide that the Appeals Council must evaluate the entire record, including

any new and material evidence that relates to the period before the date of the ALJ's decision. See

20 C.F.R. § 404.970(b). The newly submitted evidence thus becomes part of the “administrative

record,” even though the evidence was not originally included in the ALJ's record. See Nelson v.

Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). If the Appeals Council finds that the ALJ's actions,

findings, or conclusions are contrary to the weight of the evidence, including the new evidence, it

will review the case. See 20 C.F.R. § 404.970(b). Here, the Appeals Council denied review, finding

that the new evidence dated November 1, 2021, through December 1, 2021, did not show a

reasonable probability that it would change the outcome of the decision; and the evidence dated

January 11, 2022, did not relate to the time period at issue. (Tr. 2). In these circumstances, the

Court does not evaluate the Appeals Council's decision to deny review, but rather the Court

determines whether the record as a whole, including the new evidence, supports the ALJ's

determination. See Kitts v. Apfel, 204 F.3d 785, 786 (8th Cir. 2000) (“When the Appeals Council

has considered new and material evidence and declined review, we must decide whether the ALJ’s

decision is supported by substantial evidence in the whole record, including the new evidence.”).

In this case, the record revealed Plaintiff’s on-going treatment for neck pain that radiated

into her upper extremities. The new evidence submitted to the Appeals Council included treatment

notes dated November 10, 2021, wherein Plaintiff was seen by Sherilyn Jo Bennett, APRN, and

reported experiencing “a lot of radicular pain with her neck” that went “down into both of her

arms.” (Tr. 43). APRN Bennett noted that Plaintiff reported a worsening of her neck pain after

attending physical therapy. Upon examination, APRN Bennett noted Plaintiff experienced cervical

pain with movement, muscular tenderness, and a decreased range of motion. (Tr. 48). At that time,

APRN Bennett recommended that Plaintiff undergo a MRI of the cervical spine. On December 1,

2021, APRN Bennett noted that Plaintiff continued to have neck pain and reported that she also

had problems dropping things with her hands. (Tr. 51). On January 11, 2022, Plaintiff underwent

a neurosurgery consultation performed by Dr. Daraspreet S. Kainth, for an evaluation of her neck

pain that radiated into her arms and hands. (Tr. 8-10). After reviewing a MRI of the cervical spine

dated December 8, 2021, Dr. Kainth observed a mild disc bulge at the C4-5 level with left C4-5

neuroforaminal narrowing; and a disc herniation with moderate stenosis and bilateral

neuroforaminal narrowing at C5-6. Dr. Kainth also observed progression of disc herniation when

compared to the MRI performed in 2019. Dr. Kainth opined that Plaintiff would be a surgical

candidate if she stopped smoking and received clearance from pulmonology. 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 evidence.

On remand, the ALJ is also directed to address interrogatories to a medical professional

requesting that said physician review Plaintiffs 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 16th day of August 2023.

i Chasey Cometic

HON. CHR&TY COMSTOCK

UNITED STATES MAGISTRATE JUDGE