Akins v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

TIMOTHY SHANE AKINS PLAINTIFF

v. CIVIL NO. 20-3048

KILOLO KIJAKAZI,1 Acting Commissioner

0F

Social Security Administration DEFENDANT

MEMORANDUM OPINION

Plaintiff, Timothy Shane Akins, 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 his claims for a period of disability and disability insurance benefits

(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and 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).

Plaintiff protectively filed his current applications for DIB and SSI on November 30, 2016,

alleging an inability to work since November 30, 2016, due to back problems; fibromyalgia;

migraine headaches; nerve damage to the feet, hands, and fingers; and elbow problems. (Tr. 149,

307, 314). Administrative hearings were held on March 8, 2018, and April 2, 2019, at which

Plaintiff appeared with counsel and testified. (Tr. 34-95, 97-148).

1 Kilolo Kijakazi, has been appointed to serve as Acting Commissioner of Social Security, and is substituted as Defendant,

pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure

By written decision dated September 13, 2019, the ALJ found that during the relevant time

period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 13).

Specifically, the ALJ found Plaintiff had the following severe impairments: fibromyalgia;

degenerative disc disease of the cervical spine; neuropathy; reflex sympathetic dystrophy;

osteoarthritis of the bilateral lower extremities; right shoulder bursitis; and a history of a right

lateral epicondylar release. However, after reviewing all of the evidence presented, the ALJ

determined that Plaintiff’s impairments did not meet or equal the level of severity of any

impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No.

4. (Tr. 14). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:

perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except

he can occasionally climb ramps and stairs, he can never climb ladders, ropes or

scaffolds, he can occasionally balance and stoop, he can never kneel, crouch or

crawl, he is unable to push/pull or operate foot controls with his lower extremities,

and he must avoid concentrated exposure to temperature extremes, humidity,

vibration, and hazards, including no driving as part of work.

(Tr. 14). With the help of a vocational expert, the ALJ determined Plaintiff could perform work as

a small product assembler, a document preparer, and a printed circuit board inspector. (Tr. 23).

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

denied that request on May 29, 2020. (Tr. 1-6). Subsequently, Plaintiff filed this action. (ECF No.

2). This case is before the undersigned pursuant to the consent of the parties. (ECF No. 6). Both

parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 17, 18).

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).

Plaintiff argues the following point on appeal: 1) the ALJ erred in failing to find that

Plaintiff had a severe mental impairment. (ECF No. 17, p. 2). Defendant argues the ALJ properly

considered all of the evidence including treatment records and medical opinion evidence, and the

decision was supported by substantial evidence. (ECF No. 18, p. 5).

The Court has reviewed the entire transcript and the parties’ briefs. Plaintiff argues the ALJ

erred by failing to find that he had a severe mental impairment. It is noteworthy that Plaintiff did

not allege a disabling mental impairment in his applications for benefits. See Dunahoo v. Apfel,

241 F.3d 1033, 1039 (8th Cir. 2001) (failure to allege disabling mental impairment in application

is significant, even if evidence of depression is later developed). However, based upon the record,

as well as Plaintiff’s testimony at the administrative hearing, specifically that he experienced some

depression, the ALJ arranged for Plaintiff to undergo a mental status evaluation performed by Dr.

Steve A. Shry, Ph.D., on January 18, 2019. (Tr. 670-675). In addressing Plaintiff’s alleged mental

impairment, the ALJ discussed Dr. Shry’s opinion that Plaintiff was able to communicate and

interact in a socially adequate manner; to comprehend and/or carry out simple and complex tasks;

to cope with the typical demands of work like tasks; to attend well and sustain concentration when

completing tasks, noting a low frustration level; and to complete tasks mentally within acceptable

time frames. The ALJ also pointed out Plaintiff sought little treatment for mental impairments

during the time period in question. See Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (holding

that lack of evidence of ongoing counseling or psychiatric treatment for depression weighs against

plaintiff’s claim of disability). Finally, the ALJ discussed the evidence revealing that Plaintiff was

able to take care of his children; to take care of his personal needs; to prepare simple meals; to do

light household chores; to drive alone; to attend his children’s school and sports activities; to shop

for food; to visit with family; to go shooting with his sons; and to spend time watching television

and reading.

For the reasons stated in the ALJ’s well-reasoned opinion and the Government’s brief, the

Court finds Plaintiff’s arguments on appeal to be without merit and finds that the record as a whole

reflects substantial evidence to support the ALJ’s decision. Accordingly, the ALJ’s decision is

hereby summarily affirmed and Plaintiff’s Complaint is dismissed with prejudice. See Sledge v.

Astrue, No. 08-0089, 2008 WL 4816675 (W.D. Mo. Oct. 31, 2008) (summarily affirming ALJ’s

denial of disability benefits), aff’d, 364 Fed. Appx. 307 (8th Cir. 2010).

DATED this 13th day of July 2021.

Christy Comstock

/s/

HON. CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE