Jones v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 24, 2014. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

PRESTON H. JONES
vs.

PLAINTIFF
Civil No. 2:12-cv-02263

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Preston H. Jones (“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. The Parties have consented to the jurisdiction of a
magistrate judge to conduct any and all proceedings in this case, including conducting the trial,
ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 7.1
Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final
judgment in this matter.
1.

Background:
Plaintiff filed his DIB and SSI applications on August 10, 2010. (Tr. 10, 119-124). In his

applications, Plaintiff alleges being disabled due to appendix, gallbladder, pancreatitis, mental
retardation, and hearing disability. (Tr. 15, 156, 180). Plaintiff alleged an onset date of July 1, 2009.

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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.”

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(Tr. 119). These applications were denied initially and upon reconsideration. (Tr. 10, 59-74).
Thereafter, Plaintiff requested an administrative hearing on his applications, and this hearing
request was granted. (Tr. 75-76). Plaintiff’s administrative hearing was held on November 1, 2011
in Fort Smith, Arkansas. (Tr. 31-56). Plaintiff was present and was represented by David Harp at
this hearing. Id. Plaintiff and Vocational Expert (“VE”), Dale Thomas testified at this hearing. Id.
During the administrative hearing in this matter, Plaintiff testified he was fifty-three (53) years old,
which is defined as a “person closely approaching advanced age” under 20 C.F.R. § 404.1563(d)
(2008) (DIB) and 20 C.F.R. § 416.963(d) (2008) (SSI). (Tr. 34). Plaintiff also testified he had
completed the tenth grade. Id.
On November 16, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB and SSI. (Tr. 10-21). In this decision, the ALJ found Plaintiff met the insured
status requirements of the Act through March 31, 2014. (Tr. 12, Finding 1). The ALJ also
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since July 1, 2009,
his alleged onset date. (Tr. 12, Finding 2).
The ALJ determined Plaintiff had the severe impairment of pancreatitis and post-traumatic
stress disorder. (Tr. 12, Finding 3). The ALJ then determined Plaintiff’s impairments did not meet
or medically equal the requirements of any of the Listing of Impairments in Appendix 1 to Subpart
P of Regulations No. 4 (“Listings”). (Tr. 13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 14-19). First, the ALJ indicated he 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 light work and was limited to work in which interpersonal contact was incidental
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to the work performed; complexity of tasks was learned and performed by rote with few variables
and use of little judgment; and the supervision required was simple, direct, and concrete. (Tr. 14,
Finding 5).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 19, Finding 6). The
ALJ found Plaintiff unable to perform his PRW. Id. The ALJ however determined there was other
work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 19-20,
Finding 10). The VE testified at the administrative hearing regarding this issue. (Tr. 53-54). Based
upon that testimony, the ALJ determined Plaintiff retained the ability to perform other work such as
production work with 6,300 such jobs in Arkansas and 300,000 such jobs in the nation, and maids
and house cleaner with 3,000 such jobs in Arkansas and 305,700 such jobs in the nation. (Tr. 20).
Given this, the ALJ determined Plaintiff had not been under a disability as defined in the Act from
July 1, 2009 through the date of his decision. (Tr. 20, Finding 11).
Thereafter, on November 8, 2012, Plaintiff requested the Appeals Council’s review of the
ALJ’s unfavorable decision. (Tr. 6). On October 16, 2012, the Appeals Council declined to review
this unfavorable decision. (Tr. 1-3). On November 5, 2012, Plaintiff filed the present appeal. ECF
No. 1. The Parties consented to the jurisdiction of this Court on November 9, 2012. ECF No. 7.
Both Parties have filed appeal briefs. ECF Nos. 14, 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
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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
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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:
Plaintiff raises the following arguments for reversal: (1) the ALJ erred in his determination

of Plaintiff’s severe impairments, (2) the ALJ erred in finding his impairments did not meet a
Listing; (3) the ALJ erred in failing to properly assess Plaintiff’s RFC, and (4) the ALJ erred at Step
5. ECF No. 14, Pgs. 6-15. Because the Court finds the ALJ erred in his determination of Plaintiff’s
severe impairments, 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 impacts 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, 31112 (8th Cir. 1987) (adopting Justice O’Connor’s language from Bowen v. Yuckert).
Furthermore, the standard for determining whether a claimant suffers from a severe
impairment is a low or de minimis standard. See Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007)
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(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.
According to Plaintiff, the ALJ erred when he failed to find Plaintiff’s low intelligence and
problems related to pancreatitis as severe impairments.

The ALJ found Plaintiff’s severe

impairments were pancreatitis and post-traumatic stress disorder. (Tr. 12-13). This Court does not
see a difference in the ALJ’s finding of pancreatitis being severe and Plaintiff’s claim that problems
related to pancreatitis was severe. However, it does appear the ALJ entirely disregarded the findings
of Plaintiff’s low intelligence when assessing Plaintiff’s severe impairments.
On November 3, 3010, Plaintiff was seen by Dr. Patricia Walz for a Mental Diagnostic
Evaluation. (Tr. 323-328). Dr. Walz diagnosed Plaintiff with mild mental retardation vs. borderline
intellectual functioning and a GAF score of 45-50. Id. A GAF score of 40 to 50 indicates a claimant
suffers from severe symptoms. Additionally, on February 25, 2011, Plaintiff underwent an
Intellectual Assessment by Keith Norwood. (Tr. 330-333). Mr. Norwood performed intelligence
testing which showed Plaintiff’s IQ scores on the WAIS-III ranged from 56-62, which is in the
extremely low category of intelligence. (Tr. 331). Mr. Norwood indicated these results were
possibly not accurate due to Plaintiff’s pain affecting his concentration. Id. Mr. Norwood estimated
Plaintiff’s actual range may fall between the 60's and 70's. (Tr. 333).
Standing alone, these findings provide sufficient evidence demonstrating Plaintiff’s low
intelligence satisfy the low or de minimis standard for establishing a severe impairment.
Accordingly, this case must be reversed and remanded. See Nicola, 480 F.3d at 887.
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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 should be reversed and remanded. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 24th day of February 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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