United States District Court, E.D. Arkansas, Batesville Division
ALICE M. SHEPHERD PLAINTIFF
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security DEFENDANT
ORDER REMANDING TO THE COMMISSIONER
T. KEARNEY UNITED STATES MAGISTRATE JUDGE
Shepherd filed for social security disability benefits with
an alleged onset date of July 17, 2008. (R. at 214). The
administrative law judge (ALJ) denied her application after a
hearing. (R. at 98-99). The Appeals Council remanded based on
an incomplete record. (R. at 105). After a second hearing,
the ALJ once again denied Poe's application. (R. at 28).
The Appeals Council declined review. (R. at 1). Shepherd
requested judicial review, and the parties have consented to
the jurisdiction of the Magistrate Judge.
reasons stated below, this Court reverses and remands the
The Commissioner's Decision
found that Shepherd had the severe impairments of a history
of scoliosis and learning disorder/borderline functioning.
(R. at 11). The ALJ found that she had the residual
functional capacity (RFC) to perform light work, with the
ability to lift/carry and/or push/pull up to twenty pounds
occasionally and ten pounds frequently; stand and/or walk at
least six hours in an eight-hour workday; sit without
significant limitations for up to six hours in an eight-hour
workday or as otherwise demanded by required job tasks;
occasionally stoop, crouch, bend, kneel, crawl, and balance;
never climb ropes, ladders, or scaffolding; and perform work
that is simple, routine, and repetitive with supervision that
is simple, direct, and concrete. (R. at 14). Shepherd had no
past relevant work. (R. at 26). The vocational expert (VE)
testified, however, that the RFC would allow Shepherd to
perform jobs such as agricultural produce sorter or office
helper. (R. at 27). The ALJ therefore held that Poe was not
disabled. (R. at 28).
argues that the ALJ improperly rejected the opinions of
examining and treating sources and substituted his own
opinions for the objective medical evidence. She also argues
that the ALJ improperly denied her request for a consultative
examination when the ALJ rejected the opinions of all the
other examining sources. As the Court agrees that the ALJ
improperly rejected the opinions of the examining and
treating sources and impermissibly substituted his own
opinion for the medical evidence, it is not necessary to
reach her other point.
review, this Court determines whether substantial evidence on
the record as a whole supports the ALJ's decision.
Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997).
“Substantial evidence” is evidence that a
reasonable mind would find sufficient to support the
ALJ's decision. Slusser v. Astrue, 557 F.3d 923,
925 (8th Cir. 2009). Reversal is not warranted merely because
substantial evidence exists to support a contrary conclusion.
Long, 108 F.3d at 187.
the ALJ bears the responsibility of determining a
claimant's RFC based on the evidence, it is still
ultimately a medical question that requires the support of
some medical evidence. Lauer v. Apfel, 245 F.3d 700,
704 (8th Cir. 2001).
rejected every medical opinion before him. Anandaraj
Subramanium, M.D. opined that Shepherd was moderately to
severely disabled secondary to severe scoliosis and learning
disability. (R. at 500). The ALJ rejected this opinion
because “there is no evidence from which to conclude
that Dr. Subramanium either completed formal testing for
learning disability, or that the physician possesses any
expertise in evaluating for such conditions.” (R. at
25). Vann Smith, Ph.D. performed a neuropsychological
evaluation from which he opined that Shepherd's
impairments would interfere with her capacity to carry out
routine daily activities in a consistent manner. (R. at 552).
The ALJ rejected this opinion because “Dr. Smith
appeared to rely heavily upon subjective reports of the
alleged history of severely painful scoliosis, alleged
traumatic brain injury, and other allegations of chronic
pain.” (R. at 25). The ALJ further stated that there
was no objective evidence to support a history of traumatic
brain injury or diminished brain function caused by reported
head trauma. (R. at 26).
is correct that there are no medical records regarding head
injuries that Shepherd alleges as an infant and at the age of
11 or 12. This detail, however, has little to no bearing on
the symptoms that Shepherd currently suffers from. Clearly,
the issue is what she is capable of in a working environment
rather than what caused her condition. Dr. Smith's
neuropsychological evaluation consisted of a battery of tests
that are objective in nature, and the ALJ's statement
that his report is not objective is simply baffling after a
serious review of the report. (R. at 549-52).
only opinions the ALJ credited were the opinions of the
non-examining State Agency consultants. (R. at 25). These
opinions were rendered in May and July 2011. (R. at 510,
520). Neither of these consultants had the benefit of
reviewing Dr. Smith's evaluation, which was conducted in
October 2011. (R. at 549). Indeed, the State Agency
consultants rendered their opinions without the benefit of a
number of exhibits that are now in the record.
rejected the only medical opinions of medical professionals
who actually occupied the same room as Shepherd, the ALJ
further compounded his error by choosing to rely on his own
diagnostic opinion. The ALJ referred to a litany of his own
observations in the decision, noting that Shepherd could use
words the ALJ apparently deemed too advanced for a person
with limited intellectual functioning. (R. at 18). The ALJ
opined that Shepherd presented as “average” in
terms of her appearance and performance with regard to her
memory and detailed testimony. (R. at 18). The ALJ further
opined that she exhibited “appropriate ability in terms
of comprehension, attentiveness and responsiveness” to
questions and “seemingly good verbal expression and
speech/language skills, and good vocabulary usage” with
“no obvious signs or manifestations or severe, or even
noticeably significant, deficits in [her] abilities in terms
of communication and/or social interaction.” (R. at
19). The ALJ attempted to massage this lengthy digression
into an appropriate consideration by noting that an ALJ is
not to undertake diagnostic evaluation and characterizing his
observations as merely “additional factors and
evidence” that could be considered in “reaching a
well-reasoned and legally supported decision.” (R. at
19). The ALJ then discredited Shepherd further in noting she
has not taken psychotropic medications or sought mental
health treatment. (R. at 21). Unfortunately, medications and
treatments for intellectual disability do not exist.
Inclusion Europe & Mental Health Europe, Mental
Illness and Intellectual Disability,
There is no suggestion in the medical records that Shepherd
has failed to seek appropriate treatment.
discredited the testimony of Shepherd's aunt in part by
noting that she had no specialized knowledge or training in
psychology. (R. at 20). The ALJ discredited Dr. Subramanium
for similar reasons. (R. at 25). The ALJ is not permitted to
“play doctor.” Pate-Fires v. Astrue, 564
F.3d 935, 947 (8th Cir. 2009). The Eighth Circuit has
denounced “sit and squirm” tests, as “[a]ny
system of administrative adjudication which would attach
determinative weight to appearances would be fraught with the
potential for manipulation.” Cline v.
Sullivan,939 F.2d 560, 568 (8th Cir. 1991). Similar
principles apply here. The ALJ's decision relies heavily
on observations he made at ...