August v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

VICKEY D. AUGUST o/b/o PLAINTIFF

The Estate of Rodney Frederick, deceased

v. CIVIL NO. 22-5189

KILOLO KIJAKAZI, Acting Commissioner

Social Security Administration DEFENDANT

MEMORANDUM OPINION

Plaintiff, Vickey D. August, brings this action on behalf of the Estate of Rodney Frederick

(hereinafter “Frederick”) pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of

the Commissioner of the Social Security Administration (Commissioner) denying Frederick’s

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:

Frederick protectively filed his current applications for DIB and SSI on June 8, 2020,

alleging an inability to work since February 2, 2020, due to Stage IV kidney failure, congestive

heart failure and Type 1 diabetes. (Tr. 176, 300, 328). An administrative telephonic hearing was

held on June 22, 2021, at which Frederick appeared with counsel and testified. (Tr. 156-173).

By written decision dated July 28, 2021, the ALJ found that during the relevant time period,

Frederick had an impairment or combination of impairments that were severe. (Tr. 14).

Specifically, the ALJ found Frederick had the following severe impairments: chronic heart failure,

kidney disease and diabetes mellitus. However, after reviewing all of the evidence presented, the

ALJ determined that Frederick’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. 15). The ALJ found Frederick retained the residual functional capacity (RFC) to:

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

the claimant can occasionally climb, balance, crawl, kneel, stoop and crouch.

(Tr. 15). With the help of a vocational expert, the ALJ determined Frederick could perform his

past relevant work as an insurance clerk, as generally performed; and other work as a document

preparer, cutter and passer, and surveillance systems monitor. (Tr. 20-21).

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

after reviewing additional evidence submitted by Frederick denied that request on July 18, 2022.

(Tr. 1-7). Subsequently, Frederick filed this action.1 (ECF No. 2). This case is before the

0F

undersigned pursuant to the consent of the parties. (ECF No. 9). Both parties have filed appeal

briefs, and the case is now ready for decision. (ECF Nos. 16, 18).

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

1 On February 6, 2023, after being informed of Mr. Frederick’s passing, this Court granted Plaintiff’s motion to

substitute a party. (ECF No. 20).

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 his disability by establishing a physical or mental disability that has lasted at least one

year and that prevents him 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

his disability, not simply his 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 his 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 his 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 his residual functional capacity. Id.

III. Discussion:

Plaintiff argues the following issue on appeal: A) The ALJ failed to assess an RFC that

accounted for Frederick’s limitation in his ability to persist throughout the day. (ECF No. 16).

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 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 Frederick’s on-going treatment for congestive heart failure

and renal insufficiency. Medical records reveal Frederick’s treating physicians discussed end-stage

renal disease, consideration of a peritoneal dialysis catheter or fistula, and referral to a transplant

center with him in February of 2020. The new evidence submitted to the Appeals Council included

medical records dated December 1, 2021, indicating Frederick was hospitalized from August 1,

2021, through August 5, 2021, due to chest pain and vomiting. (Tr. 101-108). These records

indicate that in April of 2021, Dr. Umbar Ghaffar and Frederick discussed that Frederick needed

to start thinking about a kidney transplant versus dialysis; that in June of 2021, Dr. Ghaffar noted

Frederick had chronic fatigue/tiredness; that in August of 2021, Dr. Ghaffar and Frederick

discussed the various dialysis options and that it was time for a referral to surgery for access

placement; and that in September of 2021, Dr. Ghaffar noted Frederick had a fistula placed about

three weeks ago that was not going to work so a second procedure would need to be scheduled.

Frederick began hemodialysis on December 14, 2021. (Tr. 96). 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 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 during the relevant time period. With this evidence, the ALJ should then re-

evaluate Plaintiff's RFC for the time period in question.

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 5th day of September 2023.

is/_( basal Cometeck

HON. CHR#STY COMSTOCK

UNITED STATES MAGISTRATE JUDGE