Bement v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

TAMMY BEMENT PLAINTIFF

v. CIVIL NO. 23-3010

KILOLO KIJAKAZI, Acting Commissioner

Social Security Administration DEFENDANT

MEMORANDUM OPINION

Plaintiff, Tammy Bement, 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) under the provisions of Title II 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 application for DIB on July 7, 2017, alleging an

inability to work since July 7, 2016, due to degenerative disc disease, a spinal fusion, fibromyalgia,

a hypoactive thyroid, high blood pressure, anxiety, and depression. (Tr. 71, 241). For DIB

purposes, Plaintiff maintained insured status through December 31, 2019. (Tr. 12, 255). An

administrative video hearing was held on November 4, 2021, at which Plaintiff appeared with

counsel and testified. (Tr. 37-69).

By written decision dated December 22, 2021, the ALJ found that during the relevant time

period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 14).

Specifically, the ALJ found through the date last insured Plaintiff had the following severe

impairments: degenerative disc disease of the lumbar spine status post two surgeries. However,

after reviewing all the evidence presented, the ALJ determined that through the date last insured

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. 16). The ALJ found

that through the date last insured Plaintiff retained the residual functional capacity (RFC) to:

[P]erform light work as defined in 20 CFR 404.1567(b) except she can occasionally

climb ramps, stairs, ladders, ropes, and scaffolds; and occasionally stoop, kneel,

crouch, and crawl.

(Tr. 17). With the help of a vocational expert, the ALJ determined that through the date last insured

Plaintiff could perform her past relevant work as a door-to-door sales representative, and other

work as a collator operator, a power screwdriver operator, and a routing clerk. (Tr. 25-26).

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

denied that request on December 13, 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.

6). Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 11,

13).

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. 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:

The regulations governing the consideration of medical opinions were revised for claims

filed on or after March 27, 2017. Plaintiff filed her claim for DIB on July 7, 2017. Accordingly,

the ALJ's treatment of medical opinion evidence is governed by 20 C.F.R. § 404.1520c. Under this

Regulation, ALJs are to consider all medical opinions equally and evaluate their persuasiveness

according to several specific factors – supportability, consistency, the medical source's relationship

with the claimant, specialization, and other factors such as the source's understanding of the Social

Security Administration's disability policies and their familiarity with other evidence in the claim.

20 C.F.R. § 404.1520c(c). ALJs must “articulate in [their] determination or decision how

persuasive [they] find all of the medical opinions and all of the prior administrative medical

findings in [the] case record.” 20 C.F.R. § 404.1520c(b). These regulations require the ALJ to

discuss, at a minimum, the supportability and consistency of a medical opinion.

In this case, the ALJ’s discussion of the non-examining medical consultants’ opinions

consists of the following:

[S]tate agency medical examiners Drs. Clarence Ballard and Abesie Kelly and Drs.

Lucy Sauer and Diane Kogut reviewed the record at the initial and reconsideration

levels, respectively, and found the claimant had one severe impairment (disorders

of the back), two nonsevere impairments (depression and anxiety), and was able to

perform work at the sedentary exertional level with occasional climbing, balancing,

stooping, kneeling, crouching, and crawling…Although these professionals were

non-examining, they are well-versed in the assessment of functionality as it pertains

to the disability provisions of the Social Security Act, as amended. They reviewed

the medical evidence of record and provided specific reasons to support their

assessments based on the evidence available to them. The undersigned finds that

their conclusion of nonsevere mental impairments persuasive due to consistency

with the treatment records, which showed generally mild depression during

screenings and no initiation of counseling until just prior to her date last insured.

However, regarding physical limitations, the undersigned finds that the claimant

was less physically impaired, based on the often mild exam findings.

(Tr. 24-25).

In this case, ALJ failed to articulate the persuasiveness given to the medical opinions

regarding Plaintiff's physical capabilities (Drs. Ballard and Sauer) and failed to discuss the two

factors of supportability and consistency with respect to these medical opinions. The ALJ’s failure

to comply with the opinion-evaluation Regulation is a legal error that warrants remand. Bonnett v.

Kijakazi, 859 Fed. Appx. 19 (8th Cir. 2021) (unpublished) (per curium) (citing Lucus v. Saul, 960

F.3d 1066, 1069-70 (8th Cir. 2020) (remanding where ALJ discredited physician’s opinion without

discussing factors contemplated in Regulation, as failure to comply with opinion-evaluation

Regulation was legal error)); Pipkins v. Kijakazi, No. 1:20 CV 161 CDP, 2022 WL 218898 (E.D.

Mo. Jan. 25, 2022) (finding that the ALJ's failure to “explain” and “articulate” the supportability

and consistency of medical opinion evidence was reversible error even when the ALJ elsewhere

adequately summarized the evidence of record, and it supported the RFC determination). On

remand, the ALJ must fully evaluate and explain the supportability and consistency of the medical

opinion evidence, in accordance with 20 C.F.R. § 404.1520c.

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 18th day of December 2023.

is) Chacaty Comatoce

HON. CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE