United States District Court, E.D. Arkansas, Little Rock Division
MYRON K. DAVIS PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT
T. KEARNEY UNITED STATES MAGISTRATE JUDGE
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Billy Roy Wilson. You may file written objections to
all or part of this Recommendation. If you do so, those
objections must: (1) specifically explain the factual and/or
legal basis for your objection; and (2) be received by the
Clerk of this Court within fourteen (14) days of this
Recommendation. By not objecting, you may waive the right to
appeal questions of fact.
FOR RECOMMENDED DISPOSITION
Davis applied for social security disability benefits with an
amended alleged onset date of May 28, 2013. (R. at 38). After
a hearing, the administrative law judge (ALJ) denied his
application. (R. at 33). The Appeals Council denied his
request for review. (R. at 1). The ALJ's decision now
stands as the Commissioner's final decision, and Davis
has requested judicial review.
reasons stated below, the magistrate judge recommends
reversing and remanding the Commissioner's decision.
The Commissioner's Decision
found that Davis had the severe impairments of left patellar
fracture, status-post open reduction internal fixation
(ORIF); anxiety/depression; and remote cerebrovascular
accident (CVA). (R. at 20). The ALJ then found that
Davis's impairments left him with the residual functional
capacity (RFC) to perform sedentary work. (R. at 23).
Specifically, the ALJ found that Davis could not stand and/or
walk more than two hours total in an eight-hour workday; must
be allowed to sit and/or stand while performing work duties;
must be allowed to use a cane to access the work area; could
not perform any left lower extremity foot control operations;
could not be exposed to hazards in the workplace; could not
balance; could not climb ladders, ropes, or scaffolds; could
not kneel and crouch; could not drive or operate dangerous
machinery; and must not be exposed to dangerous heights. (R.
at 23). Davis had no past relevant work. (R. at 31). However,
a vocational expert (VE) testified that a person with
Davis's RFC could perform jobs such as nut sorter or lamp
shade assembler. (R. at 32). The ALJ therefore held that
Davis was not disabled. (R. at 33).
Court is to affirm the ALJ's decision if it is not based
on legal error and is supported by “substantial
evidence in the record as a whole, ” which is more than
a scintilla but less than a preponderance. Long v.
Chater, 108 F.3d 185, 187 (8th Cir. 1997). The Court
considers evidence supporting and evidence detracting from
the Commissioner's decision, but it will not reverse
simply because substantial evidence could support a different
outcome. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th
argues that the ALJ erred in not finding Davis had a
combination of impairments that met or equaled a listing,
that the ALJ improperly considered the opinion evidence, and
that the ALJ failed to properly assess Davis's
credibility. As the undersigned finds that the ALJ improperly
considered the opinion evidence, it is not necessary to reach
Davis's other points.
discredited the opinion of Richard Hayes, M.D. (misspelled
“Mayes”) because there were no clinical notes
from Dr. Hayes, and the ALJ concluded that Dr. Hayes was not
Davis's treating physician and “had never seen
[him] before this exam.” (R. at 30).
was only partially correct. It is true that the record does
not contain treatment records from Dr. Hayes. However, Davis
testified at the hearing that Dr. Hayes was his treating
physician. (R. at 51). Beyond this, pharmacy records show Dr.
Hayes prescribed medication to Davis on multiple occasions as
far back as August 2014 through September 2015. (R. at
270-72). Dr. Hayes's gave his opinion on September 24,
2015. (R. at 402). This clearly establishes that Dr. Hayes
had a treating relationship with Davis for over a year or
more before giving his opinion concerning his ability to
perform work-related functions.
it would be preferable for the record to also contain
treatment records from Dr. Hayes, the record and testimony
should have at least alerted the ALJ to the relationship
between Davis and Dr. Hayes. If the ALJ believed that a
decision could not be reached without additional information
from Dr. Hayes, such information could and should have been
requested. Martise v. Astrue, 641 F.3d 909, 926-27
(8th Cir. 2011). As the record indicates that Dr. Hayes ...