United States District Court, E.D. Arkansas, Little Rock Division
REBECCA L. MACKAY PLAINTIFF
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security Administration DEFENDANT
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge James Moody. 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.
MacKay (“MacKay”) applied for social security
disability benefits with an alleged disability onset date of
February 10, 2014. (R. at 93). The administrative law judge
(“ALJ”) held a hearing and denied her
applications. (R. at 35). The Appeals Council denied review.
(R. at 1). MacKay has requested judicial review.
reasons stated below, the Court recommends reversing and
remanding the Commissioner's decision.
found that MacKay had the severe impairments of degenerative
disk disease, status-post partial laminectomy, and valvular
heart disease. (R. at 29). The ALJ then found that
MacKay's impairments left her with the residual
functional capacity (“RFC”) to perform the full
range of light work. (R. at 15). The ALJ heard testimony from
a vocational expert (“VE”) and found that MacKay
could return to her past relevant work as an artist, desk
clerk, cashier clerk, and night auditor. (R. at 34-35). Thus,
the ALJ held that MacKay was not disabled. (R. at 35).
argues that new evidence warrants reversal and that the ALJ
failed to properly weigh the opinion of her treating
physician regarding the nature and extent of her physical
limitations. Because the Court agrees that the ALJ failed to
properly weigh that evidence, it need not reach MacKay's
other ground for reversal.
Court's function on review is to determine whether the
Commissioner's decision is supported by substantial
evidence on the record as a whole and whether it is based on
legal error. Miller v. Colvin, 784 F.3d 472, 477
(8th Cir. 2015); see also 42 U.S.C. § 405(g).
argues that the ALJ failed to give appropriate weight to the
opinion of her treating physician, Richard Peek, M.D., which
would have placed her at a reduced range of sedentary work.
(R. at 753-56). The ALJ gave little weight to the opinion
because: (1) he found it was based, in part, on MacKay's
subjective reports; (2) MacKay testified that Dr. Peek formed
his opinion and completed the form stating those limitations
during her first appointment with him; (3) Dr. Peek's
notes suggested that 90% of her conditions could be treated
conservatively; (4) Dr. Peek advised her to exercise every
day; and (5) MacKay testified she could lift 25 pounds when
Dr. Peek opined she could only occasionally lift 10 pounds.
(R. at 34).
the ALJ gives great or small weight to the opinions of
treating physicians, the ALJ must give good reasons for
giving the opinions that weight.” Hamilton v.
Astrue, 518 F.3d 607, 610 (8th Cir. 2008). Opinions from
non-examining sources are not generally considered
substantial evidence to support an ALJ's decision.
Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).
the ALJ gave reasons for giving Dr. Peek's opinion little
weight, the record contradicts those conclusions by the ALJ,
in important ways, and establishes errors in his assessment
of Dr. Peek's opinion.
one of the reasons given by the ALJ for discrediting Dr.
Peek's opinion was testimony from MacKay that Dr. Peek
filled out the assessment form stating her physical
limitation during her first appointment with him. This simply
is not borne out by the record. MacKay's
testimony on the subject is as follows:
Q But he's indicated on here that you can lift and carry
less than ten pounds, and you can stand or walk less than two
hours in an eight-hour workday. Do you remember meeting with
him when this form was filled out?
A That must have been in February, because that's some,
that was something he said the ...