# Rushing v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · June 26, 2018

URL: https://www.frixlaw.com/law-library/cases/10009300

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** June 26, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10009300

## How later opinions describe it (automated extraction)

- reversing the decision of the ALJ and holding that a diagnosis of borderline intellectual functioning should have been considered severe because that diagnosis was supported by sufficient medical evidence

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
JOY RUSHING PLAINTIFF
vs. Civil No. 1:17-cv-01050
NANCY A. BERRYHILL DEFENDANT
Acting Commissioner, Social Security Administration
MEMORANDUM OPINION
Joy Rushing (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying her applications for
Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and a period of
disability under Titles II and XVI of the Act.
The Parties have consented to the jurisdiction of a magistrate judge to conduct any and all
proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and
conducting all post-judgment proceedings. ECF No. 8.1 Pursuant to this authority, the Court issues
this memorandum opinion and orders the entry of a final judgment in this matter.
1. Background:

Plaintiff protectively filed her disability applications on June 26, 2014. (Tr. 14). In these
applications, Plaintiff alleges being disabled due to degenerative disc disease, respiratory problems,
and polyarthritis. (Tr. 250). Plaintiff alleged an onset date February 28, 2013. (Tr. 14). Plaintiff
later amended that alleged onset date to October 1, 2013. Id. These applications were denied

1 The docket numbers for this case are referenced by the designation “ECF No. ____” The
transcript pages for this case are referenced by the designation “Tr.”
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initially and again upon reconsideration. (Tr. 71-113).
After Plaintiff’s applications were denied, Plaintiff requested an administrative hearing on
these applications, and this hearing request was granted. (Tr. 36-70). Thereafter, on September 24,
2015, the SSA held an administrative hearing on Plaintiff’s applications in Alexandria, Louisiana.
Id. At this hearing, Plaintiff was present and was represented by Mark Chadick. Id. Plaintiff and

Vocational Expert (“VE”) Harris Rowsey testified at this hearing. Id.
On February 25, 2016, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s applications. (Tr. 11-23). The ALJ found Plaintiff met the insured
status requirements of the Act through June 30, 2018. (Tr. 16, Finding 1). The ALJ determined
Plaintiff did not engage in Substantial Gainful Activity (“SGA”) since October 1, 2013, her amended
alleged onset date. (Tr. 16, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: degenerative disc disease, obesity, COPD, bronchitis, and osteoarthritis. (Tr. 16-17,
Finding 3).

The ALJ also determined Plaintiff’s impairments did not meet or medically equal the
requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No.
4 (“Listings”). (Tr. 17-18, Finding 4). The ALJ determined Plaintiff was thirty-one (31) years old,
which is defined as a “younger individual” pursuant to 20 C.F.R. § 416.963(c) (2008) (SSI) and 20
C.F.R. § 404.1563(c) (2008) (DIB). (Tr. 22, Finding 7). As for her education, the ALJ determined
Plaintiff had at least a high school education and was able to communicate in English. (Tr. 22,
Finding 8).

The ALJ then evaluated Plaintiff’s subjective complaints and assessed her Residual
Functional Capacity (“RFC”). (Tr. 18-21, Finding 5). After assessing her subjective complaints,

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the ALJ determined her allegations were not entirely credible and found she retained the following
RFC:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a) except the claimant could not work in
extreme cold or heat, or environments where she is exposed to dust, fumes, gases,
odors, and poorly ventilated work spaces. The claimant could frequently stoop,
crawl, bend, reach, finger, handle and climb stairs and ramps. She could sit for one
hour continuously, then change position with no work stoppage.
Id. The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 21, Finding 6).
Considering her RFC, the ALJ determined Plaintiff did not retain the capacity to perform her PRW.
Id.
The ALJ also considered whether Plaintiff retained the capacity to perform other work
existing in significant numbers in the national economy. (Tr. 22-23, Finding 10). The VE testified
at the administrative hearing regarding this issue. Id. Based upon that testimony, the ALJ
determined Plaintiff retained the capacity to perform the following sedentary, unskilled occupations:
telephone quotations clerk with 8,800 such jobs in the state and 997,000 such jobs in the national
economy; and assembler with 4,700 such jobs in the state and 229,000 such jobs in the national
economy. Id. Based upon this finding, the ALJ determined Plaintiff had not been under a disability,
as defined by the Act, from October 1, 2013 through the date of her decision or through March 1,
2016. (Tr. 23, Finding 11).
Thereafter, Plaintiff requested the review of the Appeals Council. On June 16, 2017, the
Appeals Council denied this request for review. (Tr. 1-3). On August 11, 2017, Plaintiff filed her
Complaint in this matter. ECF No. 1. The Parties consented to the jurisdiction of this Court on
August 23, 2017. ECF No. 8. Both Parties have filed appeal briefs. ECF Nos. 24-25. This case is

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now ready for decision.
2. Applicable Law:

In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2010); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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. See

Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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. See 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 his or her disability by establishing a physical or mental disability that lasted at least one

year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,
160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
a “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), 1382(3)(c). A plaintiff must show that
his or her disability, not simply his or her impairment, has lasted for at least twelve consecutive

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months. See 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that

significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)
whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers

the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3. Discussion:
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 24. Specifically, Plaintiff raises two issues in her appeal

brief: (1) the ALJ erred in finding her Alpha-1 Antitrypsin respiratory condition was not a severe
impairment; and (2) the ALJ erred by failing to review the medical evidence related to that Alpha-1
Antitrypsin respiratory condition. Id. Because the Court finds the ALJ erred by finding her Alpha-1
Antitrypsin respiratory condition was non-severe, this case must be reversed and remanded.
A claimant suffers from a severe impairment if that impairment is more than slight and if that
impairment affects the claimant’s ability to do his or her basic work activities. See Householder v.

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Bowen, 861 F.2d 191, 192 n.1 (8th Cir. 1988). The Supreme Court has also held that a claimant does
not suffer from a severe impairment where the claimant only suffers from “slight abnormalities that
do not significantly limit any ‘basic work activity.’” See Bowen v. Yuckert, 482 U.S. 137, 155 (1987)
(O’Connor, S., concurring) (emphasis added); see also Brown v. Bowen, 827 F.2d 311, 311-12 (8th

Cir. 1987) (adopting Justice O’Connor’s language from Bowen v. Yuckert). See also Kirby v. Astrue,
500 F.3d 705, 707-09 (8th Cir. 2007).
Furthermore, the standard for determining whether a claimant suffers from a severe
impairment is a low standard. See Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007) (reversing the
decision of the ALJ and holding that a diagnosis of borderline intellectual functioning should have
been considered severe because that diagnosis was supported by sufficient medical evidence). If the

ALJ errs by finding a severe impairment is not severe, the ALJ’s disability determination must be
reversed and remanded. See Nicola, 480 F.3d at 887.
Plaintiff was diagnosed on two separate occasions with Alpha-1 Antitrypsin respiratory
condition. (Tr. 402-407, 409, 481). The treatment for this impairment is a Prolastin-C infusion. (Tr.
321). Plaintiff is administered this medication once weekly, and the process for administering this
medication takes from one to two hours. Id. Plaintiff also reported being sleepy and drowsy an hour

after this infusion ends. Id. Plaintiff’s medical records also indicate she is prone to more rapid
deterioration of her lung functioning due to this Alpha-1 Antitrypsin respiratory condition. (Tr. 480).
Despite these findings, the ALJ entirely ignored Plaintiff’s Alpha-1 Antitrypsin respiratory
condition in her assessment of Plaintiff’s severe impairments. (Tr. 16-17, Finding 3). As recognized
above, the standard for determining whether an impairment is severe is a low standard. Based upon
this treatment summary, Plaintiff has presented sufficient evidence demonstrating her impairment

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meets that standard. Thus, this case must be reversed and remanded for further consideration of this
issue.

4. Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is not supported by substantial evidence and should be reversed and remanded. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.

ENTERED this 26th day of June 2018.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10009300. Public record. Not legal advice.