Simmons v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

RHONDA A. SIMMONS PLAINTIFF

v. CIVIL NO. 17-3046

NANCY A. BERRYHILL, Commissioner

Social Security Administration DEFENDANT

MEMORANDUM OPINION

Plaintiff, Rhonda A. Simmons, brings this action pursuant to 42 U.S.C. § 405(g),

seeking judicial review of a decision of the Commissioner of the Social Security

Administration (Commissioner) denying her claims for supplemental security income (SSI)

benefits under the provisions of Title XVI of the Social Security Act (Act). 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).

I. Procedural Background:

Plaintiff protectively filed her current application for SSI on February 28, 2014,

alleging an inability to work due to bipolar disorder, scoliosis, migraines, back pain,

depression, a generalized anxiety disorder, impulsive problems, anger issues and numbness

and tingling in her arms and hands. (Tr. 103, 182). An administrative hearing was held on

April 9, 2015, at which Plaintiff appeared with counsel and testified. (Tr. 68-101).

By written decision dated March 29, 2016, the ALJ found that Plaintiff had not engaged in

substantial gainful activity since February 28, 2014, the application date. (Tr. 42). The ALJ

found Plaintiff had the following medically determinable impairments: an anxiety disorder, a

depressive disorder, back pain, headaches, and a history of fracture to the fourth and fifth

fingers of the left hand. However, after reviewing all of the evidence presented, the ALJ

determined:

the claimant does not have an impairment or combination of impairments that

has significantly limited (or is expected to significantly limit) the ability to

perform bask work-related activities for 12 consecutive months; therefore, the

claimant does not have a severe impairment or combination of impairments.

(Tr. 42).

Plaintiff then requested a review of the hearing decision by the Appeals Council,

which after reviewing additional evidence submitted by Plaintiff denied that request on May

12, 2017. (Tr. 1-7). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before

the undersigned pursuant to the consent of the parties. (Doc. 7). Both parties have filed

appeal briefs, and the case is now ready for decision. (Docs. 11, 14).

The Court has reviewed the entire transcript. The complete set of facts and

arguments are presented in the parties’ briefs, and are repeated here only to the extent

necessary.

II. Applicable Law:

This Court's role is to determine whether the Commissioner's findings are supported

by substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583

(8th Cir. 2002). Substantial evidence is less than a preponderance but it is enough that a

reasonable mind would find it adequate to support the Commissioner's decision. The ALJ's

decision must be affirmed if the record contains substantial evidence to support it. Edwards

v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). As long as there is substantial evidence in the

record that supports the Commissioner's decision, the Court may not reverse it simply

because substantial evidence exists in the record that would have supported a contrary

outcome, or because the Court would have decided the case differently. Haley v. Massanari,

258 F.3d 742, 747 (8th Cir. 2001). In other words, if after reviewing the record it is possible

to draw two inconsistent positions from the evidence and one of those positions represents

the findings of the ALJ, the decision of the ALJ must be affirmed. Young v. Apfel, 221 F.3d

1065, 1068 (8th Cir. 2000).

It is well-established that a claimant for Social Security disability benefits has the

burden of proving her disability by establishing a physical or mental disability that has lasted

at least one year and that prevents her from engaging in any substantial gainful activity.

Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §

423(d)(1)(A). The Act defines “physical or mental impairment” as “an impairment that

results from anatomical, physiological, or psychological abnormalities which are

demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42

U.S.C. § 423(d)(3). A Plaintiff must show that her disability, not simply her impairment, has

lasted for at least twelve consecutive months.

The Commissioner’s regulations require her 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 her 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 her age, education, and experience. See

20 C.F.R. § 416.920. Only if the final stage is reached does the fact finder consider the

Plaintiff’s age, education, and work experience in light of her residual functional capacity.

See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982), abrogated on other

grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. § 416.920.

III. Discussion:

The sequential evaluation process may only be terminated at step two when the

impairment or combination of impairments would have no more than a minimal effect on

Plaintiff's ability to work. Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996), citing

Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991)

The procedure of terminating the process at step two has been upheld by the United

States Supreme Court in Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119

(1987). In Brown v. Bowen, 827 F.2d 311 (8th Cir. 1987), the United States Court of

Appeals for the Eighth Circuit discussed the impact of Yuckert and noted:

On June 8, 1987, the Supreme Court held that the second step of the

sequential evaluation process was not per se invalid. See Bowen v.

Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). In

regard to the application of that standard, however, a majority of the

Court adopted a standard which provides that '[o]nly those claimants

with slight abnormalities that do not significantly limit any "basic

work activity" can be denied benefits without undertaking' the

subsequent steps of the sequential evaluation process. Id. 482 U.S. at

158, 107 S.Ct. at 2299.

Brown v. Bowen, 827 F.2d at 312.

Alleged impairments may not be considered severe when they are stabilized by

treatment and otherwise are generally unsupported by medical record. Johnston v. Apfel,

210 F.3d 870, 875 (8th Cir. 2000); see also Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.

2000) (plaintiff bears the burden to establish severe impairments at step-two of the sequential

evaluation). Thus, Plaintiff did have the burden of showing a severe impairment that

significantly limited her physical or mental ability to perform basic work activities, but the

burden of a plaintiff at this stage of the analysis is not great. Caviness v. Massanari, 250 F.3d

603, 605 (8th Cir. 2001).

Further, to establish entitlement to benefits, Plaintiff must show that she has been

unable to engage in any substantial gainful activity by reason of a medically determinable

impairment which had lasted or could have been expected to last for not less than twelve

months. See 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A).

A review of the medical evidence reveals that upon examination, Plaintiff’s treating

physicians consistently noted Plaintiff’s back pain upon examination during the time period

in question. In January of 2014, just prior to the application date, Dr. Lonnie Robinson,

noted that an x-ray of Plaintiff’s spine demonstrated “scoliosis at T11 and T12.” At that

time, Dr. Robinson recommended that Plaintiff “avoid heavy lifting.” (Tr. 363). While the

ALJ noted Plaintiff’s treatment by Dr. Robinson and that she had been diagnosed with

scoliosis, the ALJ did not address Dr. Robinson’s recommendation that Plaintiff avoid heavy

lifting. Based on the current medical evidence of record, the Court does not find substantial

evidence supporting the ALJ's determination that Plaintiff does not suffer from a severe

impairment. Accordingly, the Court finds remand necessary so that the ALJ can proceed with

the sequential evaluation process.

IV. Conclusion:

Accordingly, the Court concludes that the ALJ’s decision is not supported by

substantial evidence, and therefore, the denial of benefits to the Plaintiff should be reversed

and this matter should be remanded to the Commissioner for further consideration pursuant

to sentence four of 42 U.S.C. § 405(g).

DATED this 20th day of June 2018.

/s/ Erin L. Wiedemann

HON. ERIN L. WIEDEMANN

UNITED STATES MAGISTRATE JUDGE