# Wise v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · June 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10632730

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** June 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10632730

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632730. Public record. Not legal advice.