Powell v. Social Security Administration
MEMORANDUM OPINION AND ORDER OF REMAND. The decision of the Commissioner is not supported by substantial evidence. The Commissioner's decision is reversed and remanded for action consistent with this opinion. This is a "sentence four" remand within the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Signed by Magistrate Judge Beth Deere on 12/11/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ROBERT LEE POWELL
CASE NO.: 3:15CV00202-BSM-BD
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
MEMORANDUM OPINION AND ORDER OF REMAND
Plaintiff Robert Lee Powell has appealed the final decision of the Commissioner of
the Social Security Administration denying his claims for disability insurance benefits and
supplemental security income. Both parties have submitted appeal briefs and the case is
ready for decision.1
The Court’s function on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole and free of legal
error. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185,
187 (8th Cir. 1997); see also 42 U.S.C. §§ 405(g). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257
(8th Cir. 1996). In assessing the substantiality of the evidence, the Court has considered
evidence that detracts from the Commissioner’s decision as well as evidence that supports
The parties have consented to the jurisdiction of the Magistrate Judge. (Docket
Mr. Powell alleged he became limited in his ability to work due to a stroke and
hypertension. (SSA record at 125) He was sixty-two years old at the time of the hearing
and had graduated from high school. (Id. at 37, 92, 126) Mr. Powell had past work as a
rice dryer, but he stopped working because of his conditions. (Id. at 125)
After conducting a hearing, the Administrative Law Judge (“ALJ”) concluded that
Mr. Powell had not been under a disability within the meaning of the Social Security Act
from his alleged onset date, November 18, 2011, through March 19, 2014, the date of his
decision. (Id. at 14) He found that Mr. Powell met the insured status requirements
through September 30, 2014, and had not engaged in substantial gainful activity since his
alleged onset date. (Id. at 10) He found that Mr. Powell had “medically determinable
impairments” of Alzheimer’s, hypertension, and stroke, but found that Mr. Powell did not
have an impairment or combination of impairments that would, “preclude unskilled work
at any physical level.” (Id.) The ALJ did not end his analysis at step two, but went on to
judge Mr. Powell’s allegations regarding the intensity, persistence, and limiting effects of
his symptoms and found they were not entirely credible. (Id. at 10-13) Finally, the ALJ
applied Rule 204.00 of the Medical Vocational Guidelines (“the guidelines”) and
concluded that Mr. Powell had not been disabled from his onset date through the date of
his decision. (Id. at 14)
On June 11, 2015, the Appeals Council denied the request for a review of the
ALJ’s decision, making the ALJ’s decision the final decision of the Commissioner. (Id.
at 1-3) Mr. Powell then filed his complaint initiating this appeal. (Docket #2)
Reasons for Remand
Insufficient explanation in the ALJ’s opinion of his findings of fact and
conclusions of law
The ALJ’s opinion is so confusing that it is difficult for the Court to understand his
findings of fact and conclusions of law. In her brief, the Commissioner states that at step
two of the five-step analysis, the ALJ found that Mr. Powell had the severe impairments
of Alzheimer’s disease, hypertension, and stroke. (#11 at p. 2) The ALJ’s opinion,
however, is not clear on this point. It reads, “[t]he Claimant has the following medically
determinable impairments: Alzheimer’s hypertension, and stroke (20 CFR 404.1521 et
seq. and 416.921 et seq.).” (SSA record at 10 (emphasis added))
The Commissioner also asserts that the ALJ found that Mr. Powell did not meet a
listed impairment and retained the residual functional capacity for unskilled work at all
exertional levels. (Id.) Careful review of the ALJ’s opinion leaves the Court with
questions as to whether the ALJ found either that Mr. Powell had a severe impairment or
that he met a listing– or whether the ALJ assessed Mr. Powell’s residual functional
capacity at all. (See SSA record at 10-14 points 3, 4, and 5) Under these circumstances,
where there is disagreement between the ALJ’s opinion and the Commissioner’s
explanation of the ALJ’s findings, remand is appropriate. See Scott ex rel. Scott v.
Astrue, 529 F.3d 818, 822 (8th Cir. 2008) (“As a general rule, we have held that an ALJ's
failure to adequately explain his factual findings is ‘not a sufficient reason for setting
aside an administrative finding' where the record supports the overall determination.
However, we have held that a remand is appropriate where the ALJ's factual findings,
considered in light of the record as a whole, are insufficient to permit this Court to
conclude that substantial evidence supports the Commissioner's decision.”) (internal cites
The ALJ erred at steps 2 and 5
Here, the ALJ set out the required sequential process, acknowledging that
following the proper sequence requires that the analysis proceeds to steps three, four and
five only if there is a finding at step two that the claimant has a severe impairment or
combination of impairments. (SSA record at 9-10) In his analysis of Mr. Powell’s claim,
the ALJ never found that Mr. Powell had a severe impairment. (Id. at 10) Instead, the
ALJ found that Mr. Powell has medically determinable impairments–including a
“medically determinable mental impairment” that would limit him to “unskilled” work.
(SSA record at 12) This was error.
The claimant bears the burden at step two of demonstrating the existence of an
impairment that significantly limits his ability to do basic work activity. 20 C.F.R.
§§ 404.1520(c), 416.920(c); Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). Mr.
Powell had the burden of showing that his impairment was severe, but this burden is not a
great one. Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001). An impairment or
combination of impairments is not severe if it is so slight that it is unlikely that the
claimant would be found disabled even if his age, education, and experience were taken
into consideration. Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287 (1986).
The regulations define a “severe” impairment as one that significantly limits a
claimant’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c);
416.920(c). Here, there was not substantial evidence supporting ALJ’s conclusion that
Mr. Powell’s medically determinable mental impairment of Alzheimer’s did not limit his
ability to perform basic work activities, such as carrying out and remembering simple
instructions, using judgment, responding to supervision, co-workers, and unusual work
situations, and dealing with changes in a routine work setting. (Id. at 11-14) The ALJ
acknowledged as much when he found that Mr. Powell retained only the capacity for
The ALJ evaluated Mr. Powell’s mental impairment but concluded that he had no
limitation in activities of daily living; mild limitation in social functioning and
concentration persistence and pace; and no episodes of decompensation. Substantial
evidence does not support the ALJ’s findings.
Both agency physicians and Brian McIntyre, Ph.D., who performed a consultative
mental examination of Mr. Powell, found that he had more severe limitations. Dr.
McIntyre noted that Mr. Powell reported symptoms consistent with memory difficulties
and noted he had to have questions repeated after a short period of time. (Id. 203) Dr.
McIntyre diagnosed Mr. Powell with Alzheimer’s and found that he had low average
intelligence and memory difficulties. (Id. at 201-04)
Dr. McIntyre’s opinion is consistent with the opinion of agency physician Diane
Kogut, Ph.D., who found Mr. Powell to be moderately limited in his ability to carry out
detailed instructions; maintain attention and concentration for extended periods; sustain
an ordinary routine without special supervision; perform at a consistent pace without an
unreasonable number and length of rest periods; accept instruction and respond
appropriately to criticism from supervisors; respond appropriately to changes in the work
setting; and set realistic goals or make plans independently of others. (Id. at 206-09) She
concluded that, as a result of his impairments, Mr. Powell should be limited to work
where, “interpersonal contact is incidental to work performed, e.g. assembly work;
complexity of tasks is learned and performed by rote, few variables, little judgment;
supervision required is simple, direct and concrete (unskilled).” (Id. at 208) Dr. Kogut’s
opinion was affirmed by Melissa Jackson, Ph.D. (Id. at 235)
These opinions are supported by Mr. Powell’s testimony. Mr. Powell reported
being unable to work because of his conditions. Mr. Powell’s memory issues were
apparent during the hearing when he could not recall the names or ages of the
grandchildren whom he lived with. (Id. at 33) Further, both Mr. Powell and his daughter
noted in reports submitted to the Commissioner that he needed reminders to care for his
personal needs, to take medications, and that he got easily confused. (149, 153, 157, 16365) Mr. Powell met his burden of establishing that he had a severe mental impairment.
Given the ALJ’s failure to find a severe impairment at step two, the ALJ’s analysis
should have ended with a conclusion that Mr. Powell was not disabled. Here, however,
the ALJ went on to discuss Mr. Powell’s credibility,2 then stated, “Rule 204.00 applies in
this case. Under the framework of this rule, the claimant is capable of unskilled work at
any exertional level.” (Id. at 14)
Mr. Powell correctly asserts that the ALJ erred by relying on the guidelines to
determine that he could perform other jobs at step five of the sequential process. Having
found Mr. Powell met his burden of establishing that his Alzheimer’s was a severe mental
impairment that diminished his capacity to perform a full range of work activities, the
ALJ erred by applying the Guidelines. See Brock v. Astrue, 674 F.3d 1062, 1065 (8th Cir.
2012) (because the ALJ determined claimant suffered from a severe mental impairment
that limited the claimant to unskilled work, he erred by relying on the Guidelines instead
of vocational expert testimony).
The ALJ discounts Mr. Powell’s credibility, in part, because he found that Mr.
Powell continued to work after his onset date at his seasonal job as a rice dryer. (SSA
record at 13) This conclusion is not supported by the record. Mr. Powell alleged an
onset date of November 18, 2011, and the earnings records indicate that he did not have
any earnings after 2011. (Id. at 106, 111, 113) Additionally, Mr. Powell testified that he
did not work after 2011. (Id. at 27-29)
After considering the record as a whole, the Court concludes the ALJ’s failure to
coherently set out his findings of facts and conclusions of law and his failure to find that
Mr. Powell’s Alzheimer’s was a severe impairment was error. Additionally, his
application of the guidelines were error. The decision of the Commissioner is not
supported by substantial evidence. The Commissioner’s decision is reversed and
remanded for action consistent with this opinion. This is a “sentence four” remand within
the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991).
DATED this 11th day of December, 2015.
UNITED STATES MAGISTRATE JUDGE
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