United States District Court, E.D. Arkansas, Jonesboro Division
BRENDA S. LEMM PLAINTIFF
CAROLYN W. COLVIN, Acting Commissioner, SOCIAL SECURITY ADMINISTRATION DEFENDANT
MEMORANDUM AND ORDER
Brenda S. Lemm appeals the final decision of the Acting
Commissioner of the Social Security Administration (Acting
Commissioner) denying her claim for supplemental security
income (SSI). Both parties have submitted appeals briefs, and
the case is ready for decision. The only issue before the Court
is whether the Acting Commissioner’s decision is
supported by substantial evidence. After reviewing the
administrative record and the arguments of the parties, the
Court finds that the Acting Commissioner’s decision is
unsupported by substantial evidence.
protectively filed her application for SSI on April 25, 2013,
alleging a disability onset date of April 12, 2012. She
claims disability due to a left dislocated hip, bilateral
hand pain and right knee pain. Plaintiff’s claims were
denied at the initial and reconsideration levels. On March
25, 2014, the administrative law judge (ALJ) held an
administrative hearing, and on October 23, 2014, issued an
unfavorable opinion. Plaintiff requested that the Appeals
Council review the decision, but the Appeals Council found no
reason under its rules to review the ALJ’s decision.
Therefore, the Appeals Council denied the request for review.
It is from this decision that Plaintiff now brings her
was 59 years old at the time of the administrative hearing.
She completed high school and had past relevant work as a
salon owner/cosmetologist. The ALJ applied the five-step
sequential evaluation process to Plaintiff’s
claim. Plaintiff satisfied the first step because
she had not engaged in substantial gainful activity since her
application date. At step two, the ALJ found that Plaintiff
suffered from the severe impairments of degenerative disc
disease, carpal tunnel syndrome, obesity, and degenerative
joint disease. At the third step, the ALJ found Plaintiff did
not have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 C.F.R. § 404, Subpt. P, App. 1
("listing"). Further, the ALJ found
Plaintiff’s medically determinable impairments could
reasonably be expected to cause her alleged symptoms but that
her statements concerning the intensity, persistence and
limiting effects of those symptoms were not entirely
credible. The ALJ found Plaintiff retained the residual
functional capacity (RFC) to perform light work,
except that she could only frequently use her right hand to
handle and finger. At step four, the ALJ found Plaintiff
could perform her past relevant work as a cosmetologist.
Accordingly, the ALJ found Plaintiff was not under a
Court’s limited function on review is to determine
whether the Commissioner’s decision is supported by
substantial evidence on the record as a whole and free of
legal error. Long v. Chater, 108 F.3d 185, 187 (8th
Cir. 1997); see also 42 U.S.C. § 405(g).
Substantial evidence is "less than a preponderance, but
enough that a reasonable mind might accept it as adequate to
support a decision." Cox v. Apfel, 160 F.3d
1203, 1206-07 (8th Cir. 1998) (citing Lawrence v.
Chater, 107 F.3d 674, 676 (8th Cir. 1997)). The
Commissioner’s decision cannot be reversed merely
because substantial evidence would have supported an opposite
decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th
Cir. 2004). However, "[t]he substantial evidence test
employed in reviewing administrative findings is more than a
mere search of the record for evidence supporting the
[Commissioner’s] findings." Gavin v.
Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987).
"‘Substantial evidence on the record as a
whole’ . . . requires a more scrutinizing
analysis." Id. (quoting Smith v.
Heckler, 735 F.2d 312, 315 (8th Cir. 1984)). "In
reviewing the administrative decision, ‘[t]he
substantiality of evidence must take into account whatever in
the record fairly detracts from its weight.’"
Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)).
appeal, Plaintiff argues the Commissioner’s decision at
step four that she can perform her past relevant work is not
supported by substantial evidence on the record as a whole.
Specifically, Plaintiff contends the ALJ wrongly rejected the
opinion of treating physician Travis Richardson, D.O. and
gave greater weight to the opinion of Roger Troxel, M.D., the
one-time consultative examiner. Dr. Richardson’s
records were submitted to the Appeals Council after the
administrative hearing, and Plaintiff argues this evidence
justifies remand. The Appeals Council determined however that
remand was not required.
four, the ALJ determines whether a claimant can return to her
past relevant work.
four is reached, the ALJ is required to evaluate the
claimant’s ability to perform her past relevant work
under the following guidelines:
(f) Your impairment(s) must prevent you from doing past
relevant work. If we cannot make a determination or decision
at the first three steps of the sequential evaluation
process, we will compare our residual functional capacity
assessment, with the physical and mental demands of your past
relevant work. If you can still do this kind of work, we will
find that you are not disabled.
See 20 C.F.R. § 416.920(f). The burden at step
four remains with the claimant to prove her RFC and establish
that she cannot return to her past relevant work. Moore
v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009).
well-settled that a treating physician’s opinion is
entitled to substantial weight "unless it is unsupported
by medically acceptable clinical or diagnostic data."
Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir.
2000) (quoting Kirby v. Sullivan, 923 F.2d 1323,
1328 (8th Cir. 1991)). This Court, however, is not faced with
the questions of the Commissioner’s step-four analysis
or the weight given to Dr. Richardson’s opinion.
Rather, this Court must also consider that question in light
of the fact that most of the records ...