The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TERRY ZIMMER PLAINTIFF
vs. Civil No. 2:18-cv-02156
NANCY A. BERRYHILL DEFENDANT
Acting Commissioner, Social Security Administration
MEMORANDUM OPINION
Terry Zimmer (“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 his application for
Supplemental Security Income (“SSI”) under Title 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. 7. 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 his disability application on December 16, 2015. (Tr. 14). In his
application, Plaintiff alleges being disabled due to an injury in his leg from an auto accident,
degenerative back disease, “three screws in hip chronic pain,” problems in both his knees, panic
attacks, and anxiety. (Tr. 199). Plaintiff alleges an onset date of July 20, 2002. (Tr. 14). This
application was denied initially and again upon reconsideration. Id.
Plaintiff requested an administrative hearing in this matter, and this hearing was held on
November 8, 2016 in Fort Smith, Arkansas. (Tr. 34-62). At this hearing, Plaintiff was present and
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was represented by Nicholas Coleman. Id. Plaintiff and Vocational Expert (“VE”) Tanya Owen
testified at this hearing. Id.
After this administrative hearing, the ALJ entered a fully unfavorable decision on Plaintiff’s
application. (Tr. 11-26). In this decision, the ALJ found Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since December 16, 2015, his application date. (Tr. 16, Finding 1). The
ALJ determined Plaintiff had the following severe impairments: degenerative disc disease (disorders
of the back–discogenic and degenerative); and injuries post auto accident. (Tr. 16-17, Finding 2).
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, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 17-20, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the capacity to perform the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 416.967(b). The claimant could lift and carry 20 pounds occasionally and 10
pounds frequently; stand and or walk for 6 hours in an 8-hour workday with normal
breaks and sit for 6 hours in an 8-hour workday, with normal breaks. Push and pull
limitations pursuant to the lift/carry limitations. The claimant would be able to stoop,
kneel, crouch and crawl occasionally. Foot control operations on the left would be
occasional.
Id. The ALJ determined Plaintiff was thirty-six (36) years old, which is defined as a “younger
individual” under 20 C.F.R. § 416.964(c), on his date last insured. (Tr. 20, Finding 6). The ALJ also
determined Plaintiff had a limited education and was able to communicate in English. (Tr. 20,
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Finding 7).
Considering his RFC, the ALJ determined Plaintiff had no Past Relevant Work (“PRW”).
(Tr. 20, Finding 5). The ALJ then determined whether Plaintiff retained the capacity to perform
other work existing in significant numbers in the national economy. (Tr. 21-22, Finding 9). 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
requirements of representative occupations such as the following: (1) assembler (circuit board)
(sedentary, unskilled) with 34,000 such jobs in the national economy and 200 such jobs in the region;
(2) document preparer (sedentary, unskilled) with 23,000 such jobs in the national economy and
3,100 in the local region; and (3) driver (sedentary, unskilled) with 50,000 such jobs in the national
economy and 1,500 such jobs in the region. (Tr. 21). Because Plaintiff retained the capacity to
perform this other work, the ALJ determined Plaintiff had not been under a disability (as defined by
the Act) at any time from December 16, 2015 (application date) through September 25, 2017 (ALJ’s
decision date). (Tr. 22, Finding 10).
Plaintiff then requested the Appeals Council’s review of this unfavorable decision. On July
9, 2018, the Appeals Council denied this request for review. (Tr. 1-7). Thereafter, on September
7, 2018, Plaintiff filed his Complaint in this action. ECF No. 1. Both Parties have filed appeal briefs
and have consented to the jurisdiction of this Court. ECF Nos. 7, 15-16. This case is now ready for
decision.
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
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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
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
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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 his appeal brief, Plaintiff alleges the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 15. Specifically, Plaintiff raises two arguments for
reversal: (1) the ALJ improperly found Plaintiff did not require the use of assistive device when
ambulating; and (2) the ALJ erred in evaluating Plaintiff’s mental RFC. Id. Because the Court finds
the ALJ erred in evaluating Plaintiff’s use of an assistive device, the Court will only address the first
issue Plaintiff has raised.
Plaintiff claims the ALJ improperly found he did not require the use of assistive device while
walking or ambulating. ECF No. 15 at 1-3. In his opinion, the ALJ based this finding largely on his
determination that Plaintiff’s consulting examiner, as a part of an orthopedic examination, found he
did not require the use of an assistive device while ambulating: “He [Plaintiff] used a cane in his left
hand to assist with ambulation, but Dr. Honghiran noted this was not necessary.” (Tr. 19).
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Upon review of his report, however, Dr. Honghiran did find Plaintiff required the use of a
cane to ambulate and found Plaintiff could only walk one block without a cane. (Tr. 342). Indeed,
it appears the ALJ considered the initial part of Dr. Honghiran’s report but did not consider all of his
findings. Id. Thus, the Court cannot find that the ALJ’s determination–that Plaintiff is unable to
ambulate without assistance–is supported by substantial evidence in the record. 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 20th day of June 2019.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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