Winford v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

GARY D. WINFORD PLAINTIFF

vs. Civil No. 2:22-cv-02010

COMMISSIONER,

SOCIAL SECURITY ADMINISTRATION DEFENDANT

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Gary D. Winford (“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 applications for

a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income

(“SSI”) under Titles II and XVI of the Act.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable P. K.

Holmes, III referred this case to this Court for the purpose of making a report and recommendation.

In accordance with that referral, and after reviewing the arguments in this case, this Court

recommends Plaintiff’s case be REVERSED AND REMANDED.

1. Background:

Plaintiff protectively filed his disability applications on October 25, 2017. (Tr. 11).1 In

these applications, Plaintiff alleges being disabled due to degenerative disc disease, left arm rotator

cuff strain, non-insulin dependent diabetes mellitus, neuropathy, and a knee injury. (Tr. 232).

Plaintiff also alleged being disabled due to depression at the hearing in this matter. (Tr. 69-71).

1References to the Transcript will be (Tr.___) and refer to the document filed at ECF No. 10. These

references are to the page number of the transcript itself, not the ECF page number.

Plaintiff alleges an onset date of March 19, 2017. (Tr. 11). These applications were denied initially

and again upon reconsideration. (Tr. 86-87). Thereafter, Plaintiff requested an administrative

hearing, and this hearing request was granted. (Tr. 58-85). Plaintiff’s administrative hearing was

held on September 4, 2019, and this hearing was held in Fort Smith, Arkansas. (Tr. 58-85). At

this hearing, Plaintiff was present and was represented by counsel, Laura McKinnon. Id. Plaintiff

and Vocational Expert (“VE”) Zachariah R. Langley testified at this hearing. Id.

On February 4, 2021, the ALJ entered an unfavorable decision denying Plaintiff’s disability

applications. (Tr. 8-22). In this decision, the ALJ found Plaintiff met the insured status

requirements of the Act through December 31, 2021. (Tr. 13, Finding 1). The ALJ found Plaintiff

had not engaged in Substantial Gainful Activity (“SGA”) since March 19, 2017, his alleged onset

date. (Tr. 13, Finding 2). The ALJ found Plaintiff had the following severe impairments: disorders

of the back, left shoulder impingement, right hip bursitis, and obesity. (Tr. 13-15, Finding 3).

Despite being severe, the ALJ determined those 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. 15, Finding 4).

In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his

Residual Functional Capacity (“RFC”). (Tr. 15-20, Finding 5). 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 RFC 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 404.1567(b) and 416.967(b) except the claimant is limited to occasional

stooping and crouching and occasional overhead reaching with the left upper

extremity.

Id. As for his age, the ALJ determined Plaintiff was forty-seven (47) years old, which is defined

as a “younger person” under 20 C.F.R. § 416.963(c) (2008) and 20 C.F.R. § 404.1563(c) (2008).

(Tr. 20, Finding 7). As for his education, the ALJ determined Plaintiff had at least a high school

education and was able to communicate in English. (Tr. 20, Finding 8).

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was

unable to perform any of his PRW. (Tr. 21-22, Finding 10). The ALJ also considered whether

Plaintiff retained the capacity to perform other work existing in significant numbers in the national

economy, considering his age, education, work experience, and RFC. Id. The VE testified at the

administrative hearing regarding this issue. Id.

Considering this testimony, the ALJ determined Plaintiff retained the capacity to perform

representative light, unskilled occupations such as assembler (production) with 288,000 such jobs

in the national economy, mail clerk with 106,000 such jobs in the national economy, and cleaner

(housekeeper) with 126,000 such jobs in the national economy. (Tr. 21, Finding 10). 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, from March 19, 2017 through the date of his decision

or through October 24, 2019. (Tr. 22, Finding 11).

Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s decision. On

November 16, 2021, the Appeals Council denied this request for review. (Tr. 1-7). On January

14, 2022, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF

Nos. 12, 15. This case is 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 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 his appeal brief, Plaintiff raises five arguments for reversal: (1) the ALJ erred in failing

to fully and fairly develop the record; (2) the ALJ erred at Step Two of the Analysis by finding his

depression and speech impairment were non-severe; (3) the ALJ erred in analyzing his subjective

complaints under Polaski; (4) the ALJ erred in his RFC determination; and (5) the ALJ erred in

his Step Five determination. ECF No. 12 at 1-18. Upon review of his second argument, the Court

finds it is merited, and this case should be remanded on this basis. Thus, the Court will only

address this issue.

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. 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.

In the present action, Plaintiff alleges being disabled due to depression. (Tr. 69-71, 324).

Plaintiff testified suffering from depression and testified to seeing a counselor. (Tr. 70). Plaintiff

testified he took Prozac and a form of Seroquel. Id. Plaintiff testified he took this medication

every night and it made him sleepy in the morning. Id. Plaintiff testified he had been taking this

medication for six months and sees a counselor monthly. (Tr. 71). Plaintiff had been diagnosed

with depression and was being treated for depression. (Tr. 425, 475, 479). Based upon the record,

it does not appear these symptoms have resolved; and while they have improved with medication,

he still suffers from significant side effects as a result of this medication. According to his

counseling records, he was found to have “unremitting symptoms of depression.” (Tr. 476). This

is sufficient evidence to meet the low standard for demonstrating a severe impairment. Thus, this

case must be reversed and remanded for consideration of Plaintiff’s depression.

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 recommends it be REVERSED

AND REMANDED.

The Parties have fourteen (14) days from receipt of this 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. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).

ENTERED this 18th day of October 2022.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE