MARBERRY v. ASTRUE
| Decision Date | 14 April 2011 |
| Docket Number | CIVIL NO. 3:10-CV-03015 |
| Parties | JOHN E. MARBERRY PLAINTIFF v. MISHAEL J. ASTRUE, Commissioner of Social Security Administration DEFENDANT |
| Court | U.S. District Court — Western District of Arkansas |
OPINION TEXT STARTS HERE
Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of Social Security Administration (Commissioner) denying his claim for Supplemental Security Income benefits (SSI) under Title XVI of the Social Security Act (Act), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 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).
Plaintiff filed for supplemental security income benefits alleging disability on June 21, 2005 (Tr. 84). As noted in the ALJ's decision, an individual may not qualify for disability benefits under SSI unless and until the individual applies for the benefit (Tr. 36); 20 C.F.R. § 416.335. Consequently, Plaintiff is not eligible for benefits as of his alleged onset of disability, May 10, 2004. The application was denied initially and on reconsideration and Plaintiff requested a hearing (Tr. 47, 53). A hearing was held on May 15, 2008, before an Administrative law judge (ALJ). (Tr. 7-26). On July 24, 2008, the ALJ issued a decision finding Plaintiff notdisabled (Tr. 33-46). On January 7, 2010, the Appeals Council found no basis to reverse the ALJ's decision (Tr. 1). Therefore, the ALJ's July 24, 2008 decision became the Commissioner's final administrative decision
This court's role is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it adequate to support the Commissioner's decision. Id. "Our review extends beyond examining the record to find substantial evidence in support of the ALJ's decision; we also consider evidence in the record that fairly detracts from that decision." Id. As long as there is substantial evidence in the record to support the Commissioner's decision, the court may not reverse the decision simply because substantial evidence exists in the record to support a contrary outcome, or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If the court finds it possible "to draw two inconsistent positions from the evidence, and one of those positions represents the Secretary's findings, the court must affirm the decision of the Secretary." Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
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 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). The Act defines "physical or mental impairment" as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptableclinical and laboratory diagnostic techniques." 42 U.S.C. § § 423(d)(3), 1382(3)©. A plaintiff must show that his disability, not simply his impairment, has lasted for at least twelve consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner's regulations require him 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(a)- (f)(2003). Only if the final stage is reached does the fact finder consider the plaintiff's age, education, and work experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
Plaintiff is a 36 year old man who graduated from high school and went on to receive a Bachelor of Science in Business Administration. (Tr. 12, 24) He has worked as a marketer, salesman, security guard, delivery driver, mill laborer, and auto salvage mechanic. (Tr. 107, 156-57).
On May 10, 2004, while employed at his last job he was lifting an automobile transmission out of a vehicle when he injured his back. (T. 12) He went to the Emergency Room at Northwest Arkansas Regional Medical Center (T. 227) x-rays were taken which showed a normal lumbar spine and normal dorsal spine. (T. 231) and he received a prescription forIbupropen 800mg, Flexeril 10mg and Vicodin 5/500. (T.230).
On May 12, 2004 the Plaintiff was seen by his treating physician, Dr. Leslie, who began to treat him for his for his back and elbow pain and continued to treat him through August 2004. (T. 213-218). On May 21, 2004 an MRI was performed which showed a desiccation (drying) of disc material at 5-1 and annular bulges at 5-1 and 4-5 but no herniated nucleus pulposus or spinal stenosis. (T. 219).
On August 21, 2004 the Plaintiff was a passenger in a motor vehicle that was rear ended by another vehicle and went to the North Arkansas Regional Medical Center Emergency Room complaining of elbow and neck pain. (T. 221-222). The Physician's Report shows that the x-rays were all negative and the Plaintiff had no rediculopatihic1 pain.
On September 28, 2004 the Plaintiff did present to the North Arkansas Regional Medical Center Emergency Room complaining of low back pain. He was administered some pain medication and discharged. (T. 234-235).
On June 21, 2005 Plaintiff filed for supplemental security income benefits alleging disability on May 10, 2004 (Tr. 84) as a result of lifting a heavy object on that day. (T. 97).
On August 24, 2005, Plaintiff underwent consultative examination with Shannon Brownfield, M.D. (Tr. 237-243). Dr. Brownfield noted Plaintiff did not take prescription pain medication for his alleged back pain. Plaintiff exhibited normal range of motion of the cervical spine and normal lumbar flexion, but reported pain on flexion (Tr. 240). Straight leg raising testing was negative on the right and positive on the left (Tr. 240). Plaintiff's reflexes werecharacterized as essentially normal (Tr. 241). Plaintiff exhibited some muscle weakness in the left thigh and left foot, but no muscle atrophy. Plaintiff's sensation was decreased relative to his L4-5 disk on the left lower extremity (Tr. 241). Dr. Brownfield found Plaintiff experienced lower back pain with radiculopathy at L4-5 "probably due to disk herniation and limited stooping and lifting hernations," and he noted that Plaintiff alleged soreness on prolonged walking, sitting, standing (Tr. 243).
On September 1, 2005 Kimberly Adametz, M.D., reviewed Plaintiff's physical medical records and opined that Plaintiff retrained the capacity to sit about six hours and stand six hours in an eight hour day and that he could lift 20 pounds occasionally and 10 pounds frequently, (Tr. 244-245). Dr. Adametz opined Plaintiff could only occasionally stoop or crouch. Rana Mauldin, M.D., subsequently affirmed Dr. Adametz's findings on November 22, 2005 (Tr. 251).
On December 5, 2005 a Psychiatric Review Technique was performed by Dr. G. Sutton. (T. 252-264). No functional limitations were noted (T. 262) and the doctor noted the Plaintiff's daily living activities and that his physical examination of August 25, 2005 did not note any psychiatric impairment. (T. 264).
On July 10, 2006 Plaintiff underwent lumbar myelogram, and post myelogram CT. Xrays revealed normal vertebral body heights and alignment. Fluoroscopy demonstrated no effacement of the nerve root sleeves (Tr. 287). CT demonstrated mild disk bulge with mild circumferential thecal sac effacement at L2-3 and L4-5 with no significant canal stenosis at L3-4 (Tr. 287). L5-S1 findings revealed a disk bulge and facet hypertrophy with no significant spinal canal stenosis and no marked canal spinal or neural foraminal stenosis (Tr. 287). There was no evidence of mental problems (Tr 292).
On August 29, 2006 the Plaintiff began to see Dr. Jeff Woodward at the Springfield Neurological &Spine Center who treated the Plaintiff until October 17, 2006. (T. 289-300).
On November 29, 2007 the Plaintiff was seen by Dr. Vann Smith for a Neuropsychodiagnostic Evaluation. (T. 267-275).
On February 26, 2008 the Plaintiff was seen by Stephen Harris for a Mental Diagnostic Evaluation, Intellectual Assessment and a Neuropsychological Battery. (T. 276-285).
The ALJ found that the Plaintiff's back impairment and organic mental disorder were severe , but not of listing level severity, that the Plaintiff's subjective complaints were not fully credible and that his RFC precluded his past relevant work, but a vocational expert's (VE) testimony in response to a hypothetical showed that the Plaintiff could perform other jobs existing in substantial numbers. (T. 38-46).
The Plaintiff contends that the ALJ failed to develop the record by not sending the Plaintiff for a consultive orthopedic or neurological exam (ECF No. 8, p. 13) and that the ALJ's RFC determination was not supported by substantial evidence. (Id., p. 16). Neither claim has merit.
The Plaintiff's first contention is that the ALJ failed to develop the...
To continue reading
Request your trial