Opinion

Fillmore v. Social Security Administration Commissioner

Court
District Court, W.D. Arkansas
Filed
Sep 24, 2021
Cited by
0 cases
Authority
More cited than 17.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

GEORGE E. FILLMORE PLAINTIFF

v. CIVIL NO. 20-5199

KILOLO KIJAKAZI,1 Acting Commissioner

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Social Security Administration DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, George E. Fillmore, 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).

I. Procedural Background:

Plaintiff protectively filed his current applications for DIB and SSI on April 25, 2018,

alleging an inability to work since October 1, 2013,2 due to a bulging disc in the back, two

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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.

2 At the administrative hearing on December 11, 2019, Plaintiff, through his counsel, amended

his alleged onset date to March 19, 2015. (Tr. 15, 54). The Court notes that there is a more recent

hearing decision denying applications for DIB and SSI dated February 14, 2018. (Tr. 74). This

previous administrative hearing decision and how it might impact Plaintiff’s alleged onset date

deteriorating discs in the lower back, four heart stints, dizziness and blacking out spells, severe

headaches, traces of glaucoma and cataracts, depression, and anxiety. (Tr. 101, 272, 274). An

administrative hearing was held on December 11, 2019, at which Plaintiff appeared with counsel

and testified. (Tr. 49-70).

By written decision dated January 16, 2020, the ALJ found that during the relevant time

period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 18).

Specifically, the ALJ found Plaintiff had the following severe impairments: coronary artery

disease, a disorder of the lumbar spine, a disorder of the cervical spine, and headaches. 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. 20). The ALJ found Plaintiff retained the residual

functional capacity (RFC) to:

perform the full range of light work as defined in 20 CFR 404.1567(b) and

416.967(b).

(Tr. 20). With this RFC, the ALJ determined Plaintiff could perform his past relevant work as a

salesperson, parts. (Tr. 26).

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

denied that request on October 8, 2020. (Tr. 1-6). Subsequently, Plaintiff filed this action. (ECF

No. 2). Both parties have filed appeal briefs, and the case is before the undersigned for report and

recommendation. (ECF Nos. 13-15).

with the current application were not addressed by the ALJ in the January 16, 2020, hearing

decision.

II. Applicable Law:

The Court reviews “the ALJ’s decision to deny disability insurance benefits de novo to

ensure that there was no legal error that the findings of fact are supported by substantial evidence

on the record as a whole.” Brown v. Colvin, 825 F. 3d 936, 939 (8th Cir. 2016). 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. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). We

must affirm the ALJ’s decision if the record contains substantial evidence to support it. Lawson v.

Colvin, 807 F.3d 962, 964 (8th Cir. 2015). 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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, we must affirm the ALJ’s

decision. Id.

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

of proving his disability by establishing a physical or mental disability that has lasted at least one

year and that prevents him 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

his disability, not simply his 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 his 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 his age, education, and experience. See 20 C.F.R. §§ 404.1520, 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. §§ 404.1520, 416.920.

III. Discussion:

Of particular concern to the undersigned is the ALJ’s RFC determination. RFC is the most

a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). It is assessed using

all relevant evidence in the record. Id. This includes medical records, observations of treating

physicians and others, and the claimant’s own descriptions of his limitations. Guilliams v.

Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th

Cir. 2004). Limitations resulting from symptoms such as pain are also factored into the assessment.

20 C.F.R. § 404.1545(a)(3). The United States Court of Appeals for the Eighth Circuit has held

that a “claimant’s residual functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d

700, 704 (8th Cir. 2001). Therefore, an ALJ’s determination concerning a claimant’s RFC must

be supported by medical evidence that addresses the claimant’s ability to function in the

workplace. Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003). “[T]he ALJ is [also] required

to set forth specifically a claimant’s limitations and to determine how those limitations affect his

RFC.” Id.

In the present case, the ALJ determined Plaintiff had the RFC to perform a full range of

light work. In doing so, the ALJ specifically addressed Plaintiff’s neck and lower back

impairments and how these impairments impacted Plaintiff’s RFC. While the ALJ found Plaintiff’s

headaches to be a severe impairment, there was no discussion in the hearing decision addressing

how Plaintiff’s headaches were taken into account when formulating the RFC. A review of the

record revealed Plaintiff was diagnosed with headaches during the time period in question, and

that Plaintiff sought treatment for his headaches. Plaintiff also testified at the administrative

hearing in December of 2019, that he experienced a headache almost daily. Because the ALJ found

Plaintiff’s headaches to be a severe medically determinable impairment that significantly limited

his ability to perform basic work activities, the ALJ was required to consider the impact of the

headaches when formulating the RFC but failed to do so in this case. See Reza v. Saul, 4:19-CV-

04124-VLD, 2020 WL 1866477 at *17 (D.S.D. April 14, 2020) (remanding where ALJ found

severe impairment of migraine headaches at step two but failed to determine its effect on Reza's

ability to work) (citations omitted). As a result, remand for clarifications of this issue is required.

While on remand, the Court recommends the ALJ address the evidence in the record

regarding Plaintiff’s past relevant work as a salesperson, parts. There is evidence in the record

suggesting that Plaintiff’s work as a salesperson was actually a composite job that required work

at exertional levels exceeding light work. On remand, the ALJ should address this inconsistency

and if needed proceed to Step 5 of the sequential evaluation process.

IV. Conclusion:

Based on the foregoing, the undersigned recommends reversing the decision of the ALJ

and remanding this case to the Commissioner for further consideration pursuant to sentence four

of 42 U.S.C. § 405(g). The parties have fourteen days from receipt of our report and

recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The

failure to file timely objections may result in waiver of the right to appeal questions of fact.

The parties are reminded that objections must be both timely and specific to trigger de novo

review by the district court.

DATED this 24th day of September 2021.

Christy Comstock

/s/

HON. CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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