Badgett v. Social Security Administration
OPINION AND ORDER that the Commissioner is reversed and this action is remanded for proceedings consistent with this opinion; this is a "sentence four" remand; judgment will be entered accordingly. Signed by Chief Judge J. Leon Holmes on 6/22/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
SHEILA JEAN BADGETT
No. 2:10CV00128 JLH
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration
OPINION AND ORDER
Sheila Badgett applied for disability insurance benefits and supplemental security income.
She alleged that she was disabled and unable to work since December of 2006. Her applications
were denied initially on August 21, 2007, and upon reconsideration on December 21, 2007. Badgett
then requested a hearing at which she appeared and testified on June 23, 2009 in Memphis,
Tennessee. The Administrative Law Judge concluded that Badgett was not disabled, and the
Appeals Council denied her request to review the ALJ’s decision—rendering it final. Subsequently,
Badgett commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the ALJ’s
determination. Review by the Court is limited. The Court must determine whether the ALJ’s
decision is supported by substantial evidence on the record as a whole and whether it is based on
legal error. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997).
The Social Security Administration has promulgated a five-step sequential evaluation process
for determining whether a claimant is disabled. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. The
first step is to determine whether the claimant is engaged in substantial gainful activity. If the
claimant is engaged in substantial gainful action, benefits are denied. The second step is to
determine whether the claimant has an impairment or combination of impairments that significantly
limits the claimant’s ability to perform basic work activities, a “severe” impairment. If not, benefits
are denied. The third step is to determine whether the severe impairments meet or equal a listed
impairment that is presumed to be disabling. If so, and if the duration requirement is met, benefits
are awarded. If claimant does not meet or equal a Listing, then a residual functional capacity
assessment is made based on all the relevant medical and other evidence. The fourth step is to
determine whether the claimant has sufficient residual functional capacity, despite the impairments,
to perform the physical and mental demands of past relevant work. If so, benefits are denied. The
fifth step is to determine whether the claimant is able to make an adjustment to other work, given
claimant’s age, education and work experience. If so, benefits are denied; if not, benefits are
Badgett was born in 1964. She graduated from high school and obtained a cosmetology
license. Badgett has been employed in a variety of capacities including as a bartender, waitress,
stocker, salesperson, phone solicitor, and housekeeper, but the record is unclear regarding how long
she stayed in most of these positions. Badgett testified that she was employed as a sales person for
about four months and had cleaned two houses once a week “on and off” since 2003. She said that,
as a house cleaner, she made about $115 per week.1
In 2001, Badgett experienced severe back pain, tingling on her left side, and muscle spasms.
She was diagnosed with probable degenerative disc disease and associated fibromyalgia. She
testified that in 2006 she was physically assaulted in Little Rock. She was diagnosed with low back
pain and mild degenerative joint disease of the lumbar spine in 2007. Badgett reported constant
aches in her back, hips, and legs as well as almost daily headaches. In 2008, she was diagnosed with
degenerative disc disease and mild neural foramenal spurring. Later, she was diagnosed with altered
The DISCO DIB Insured Status Report indicates that Badgett had earnings of $8,417.50
in 2007 and $4,253.00 in 2008.
mental status secondary to alcohol intoxication and Ambien overdose, chronic alcohol abuse,
depression and kypokalemia.
The ALJ concluded that Badgett met “the insured status requirements of the Social Security
Act through March 31, 2010.” At the first step, the ALJ found that Badgett had not engaged in any
substantial gainful activity since December 12, 2006, the onset date of her alleged disability. The
ALJ concluded that her attempt to work as a tombstones salesperson from January to April of 2008
was an unsuccessful work attempt. At the second step, the ALJ also found that Badgett suffers from
two severe impairments, fibromyalgia and headaches. At the third step, the ALJ found that Badgett
does not have an impairment or combination of impairments that are medically equivalent to a
Listing. The ALJ concluded that Badgett “has the residual functional capacity to perform the full
range of light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b).” At the fourth step, the
ALJ found that Badgett is not disabled because she is still “capable of performing her past work as
a waitress, bartender, phone solicitor, salesman and cleaner.” Nevertheless, the ALJ also moved to
the fifth step because he could not positively determine “if all [Badgett’s] past jobs constituted past
relevant work.” At the fifth step, the ALJ applied the Medical-Vocational Rules and again held that
Badgett is not disabled. Considering her age, education, work experience, and residual functional
capacity, the ALJ found that there were other jobs that exist in significant numbers in the national
economy which Badgett could perform. The ALJ made that finding without calling a vocational
Badgett contends that the ALJ erred in finding her “not disabled” at the fourth step, which
requires a determination as to whether the claimant can perform past relevant work. Past relevant
work is work that the claimant has performed within the past 15 years, that was substantial gainful
activity, and that lasted long enough for the claimant to learn how to do it.
§ 404.1560(b)(1); 20 C.F.R. § 416.960(b)(1). The ALJ concluded that Badgett’s four months as a
salesperson was an unsuccessful work attempt and, therefore, not substantial gainful activity. See
20 C.F.R. § 404.1574(c); 20 C.F.R. § 416.974(c). The only clear evidence regarding Badgett’s
income from her work as a house cleaner is her testimony that she made $115 per week, or $460 per
month, cleaning two houses, which falls below the monthly minimum specified in the regulatory
earning guidelines. 20 C.F.R. § 404.1574(b); 20 C.F.R. § 416.974(b). Consequently, neither her
brief stint as a purveyor of tombstones nor her work as a house cleaner constitutes past relevant
work. Further, as the ALJ noted in his opinion, the evidence fails to show how long Badgett worked
at any of the other jobs that she listed on her Work History Report. Thus, the evidence does not
establish that Badgett performed any past relevant work. In such a case, the regulations direct the
ALJ to move to the fifth step. 20 C.F.R. § 404.1520(g)(1); 20 C.F.R. § 416.920(g)(1); see also
Vincent v. Apfel, 264 F.3d 767, 769 (8th Cir. 2001).
While the ALJ erred in concluding at the fourth step that Badgett was not disabled, the ALJ
did not end his inquiry at the fourth step. Rather, the ALJ continued to the fifth step and
alternatively concluded that Badgett was not disabled based on analysis at that step.
Badgett contends that the ALJ’s alternative basis for finding her not disabled—that, based
on her age, education, work experience, and residual functional capacity, she could perform other
jobs existing in significant numbers in the national economy—cannot stand because the ALJ did not
elicit any testimony from a vocational expert. “Generally, if the claimant suffers from nonexertional
impairments that limit her ability to perform the full range of work described in one of the specific
categories set forth in the guidelines, the ALJ is required to utilize testimony of a vocational expert.”
Draper v. Barnhart, 425 F.3d 1127, 1132 (8th Cir. 2005) (citing Reed v. Sullivan, 988 F.2d 812, 816
(8th Cir. 1993)); see also Lucy v. Chater, 113 F.3d 905, 908-909 (8th Cir. 1997). There is an
exception to this rule where “the ALJ finds, and the record supports the finding, that the
nonexertional impairments do not significantly diminish the claimant’s RFC [residual functional
capacity] to perform the full range of activities listed in the guidelines.” Draper, 425 F.3d at 1132
(alteration in original) (citing Reed, 988 F.2d at 816).
“Nonexertional limitations are limitations other than on strength but which nonetheless
reduce an individual’s ability to work.” Asher v. Bowen, 837 F.2d 825, 827 n.2 (8th Cir. 1988). The
ALJ concluded that Badgett “has the following severe impairments: fibromyalgia and headaches[.]”
Fibromyalgia and headaches are nonexertional impairments. See Gray v. Apfel, 192 F.3d 799, 802
(8th Cir. 1999) (“pain or mental incapacity” are examples of nonexertional impairments); Beckley
v. Apfel, 152 F.3d 1056, 1060 (8th Cir. 1998) (pain from headaches); Nesselrotte v. Sullivan, 939
F.2d 596, 598 (8th Cir. 1991) (headaches); Johnson v. Sec’y of Health and Human Servs., 872 F.2d
810, 814 (8th Cir. 1989) (headaches); Hawkins v. Astrue, No. 3:08CV124, 2010 WL 2599717, at *23 (E.D. Ark. June 22, 2010) (fibromyalgia); Sachs v. Astrue, No. 1:05CV106, 2008 WL 686325, at
*23-24 (E.D. Mo. Mar. 10, 2008) (fibromyalgia). By definition, “severe impairments” are those
which “which significantly limit [the claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c); Webber v. Sec’y, Health & Human
Servs., 784 F.2d 293, 299 (8th Cir. 1986) (“We fail to comprehend how the Appeals Council could
possibly have determined that [the claimant’s nonexertional impairment] constitutes a ‘severe’
impairment and yet concluded that this nonexertional impairment does not significantly affect her
exertional abilities.”); see also King v. Astrue, 564 F.3d 978, 979 (8th Cir. 2009); Browning v.
Sullivan, 958 F.2d 817, 821 (8th Cir. 1992).
As noted, Badgett’s fibromyalgia and headaches are nonexertional impairments and, because
the ALJ found that these impairments are severe, by definition they significantly limit Badgett’s
ability to do basic work activities. Consequently, the ALJ’s decision to rely solely on the
Medical-Vocational Guidelines without eliciting the testimony of a vocational expert was error. The
ALJ invaded the province of the vocational expert. Sanders v. Sullivan, 983 F.2d 822, 823-24 (8th
[I]t is clear in our circuit that vocational expert testimony is not required at step four
where the claimant retains the burden of proving she cannot perform her prior work.
Vocational expert testimony is not required until step five when the burden shifts to
the Commissioner, and then only when the claimant has nonexertional impairments,
which make use of the medical-vocational guidelines, or “grids,” inappropriate.
Banks v. Massanari, 258 F.3d 820, 827 (8th Cir. 2001) (internal citations omitted).
The ALJ’s findings are inconsistent to the extent that he found that Badgett’s fibromyalgia
and headaches are severe impairments but concluded, without testimony from a vocation expert, at
the fifth step that Badgett is not disabled. The record is also incomplete as to whether Badgett has
any past relevant work.
For the foregoing reasons, the Commissioner is reversed and this action is remanded for
proceedings consistent with this opinion. This is a sentence four remand. See Travis v. Astrue, 477
F.3d 1037, 1039 (8th Cir. 2007).
IT IS SO ORDERED this 22nd day of June, 2011.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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