Wise v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

SHERRY WISE PLAINTIFF

vs. Civil No. 4:22-cv-04113

KILOLO KIJAKAZI DEFENDANT

Acting Commissioner, Social Security Administration

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Sherry Wise (“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 application for

Disability Insurance Benefits (“DIB”) under Title II of the Act.

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

O. Hickey 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 filed her disability application on July 22, 2020. (Tr. 19). Plaintiff alleged

disability due to glaucoma and blurry vision, nerve damage and pain, back injury and pain,

recurring swelling of the feet and legs, recurring headaches, and limited physical abilities. (Tr.

168).1 Her application was denied initially and again upon reconsideration. (Tr. 19).

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.” and refer to the document filed at ECF No. 8. These

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

Plaintiff requested an administrative hearing on her denied application, and this hearing

request was granted. (Tr. 95-145). A hearing was held on March 9, 2021. (Tr. 33-56). At this

hearing, Plaintiff was present and represented by counsel, Michael Angel. Id. Plaintiff and

Vocational Expert, (“VE”) Valerie Hill testified at this hearing. Id.

On September 9, 2021, after the administrative hearing, the ALJ entered a fully unfavorable

decision denying Plaintiff’s disability application. (Tr. 19-27). In this decision, the ALJ

determined Plaintiff last met the insured status requirements of the Act through December 31,

2023. (Tr. 21, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial

Gainful Activity (“SGA”) since April 10, 2020. (Tr. 21, Finding 2).

The ALJ determined Plaintiff had the following severe impairments: peripheral

neuropathy, osteoarthritis, and obesity. (Tr. 22, Finding 3). The ALJ then determined Plaintiff

did not have an impairment or combination of impairments that met or medically equaled the

requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No.

4 (“Listings”). (Tr. 23, Finding 4).

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

Residual Functional Capacity (“RFC”). (Tr. 23-27, Finding 5). First, the ALJ indicated she

evaluated Plaintiff’s subjective complaints and found they were not entirely credible. Id. Second,

the ALJ determined Plaintiff had the RFC to perform light work. Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 27, Finding 6). The

ALJ determined Plaintiff was capable of performing her PRW as a patient account representative.

Id. Based upon this finding, the ALJ determined Plaintiff had not been disabled from April 10,

2020, through the date of the decision. (Tr. 27, Finding 7).

Plaintiff sought review with the Appeals Council. (Tr. 1-10). The Appeals Council denied

this request. Id. On November 21, 2022, Plaintiff filed a Complaint in this case. ECF No. 1. Both

Parties have filed appeal briefs. ECF Nos. 12, 13. This matter is now ripe for consideration.

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 her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by

substantial evidence in the record. ECF No. 12 at 4-14. Specifically, Plaintiff raises the following

arguments for reversal: (1) the ALJ failed to comply with SSR 03-2p; (2) the ALJ’s assessment of

her headaches at Step Two was reversible error; (3) the ALJ’s RFC assessment is not supported

by substantial evidence in the record; and (4) the ALJ failed to evaluate opinions of medical

providers. Id. Because the Court finds the ALJ erred in finding her headaches were non-severe,

the Court finds 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. 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 this case, Plaintiff alleged being disabled due to, among other things, recurring

headaches. The medical record shows Plaintiff was treated and received medication for migraines.

(Tr. 349, 455-456, 496, 506, 530, 539, 551). Plaintiff also testified about the effects this condition

and medications had on her and her ability to work. (Tr. 38, 41, 44, 48-49).

As recognized above, the standard for determining whether an impairment is severe is a

low standard. Based upon the record, Plaintiff has presented sufficient evidence demonstrating

her headaches meet that standard. Thus, this case must be reversed and remanded for further

consideration of this issue and a determination as to whether any of Plaintiff’s other impairments

meet this low standard.

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 26th day of June 2023.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE