Ray v. Social Security Administration Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on November 1, 2016. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
AARON J. RAY
vs.

PLAINTIFF
Civil No. 3:15-cv-03111

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Aaron J. Ray (“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 application for Supplemental
Security Income (“SSI”) and a period of disability under Title 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. 5.1 Pursuant to this authority, the Court issues
this memorandum opinion and orders the entry of a final judgment in this matter.
1.

Background:
Plaintiff protectively filed his disability application on May 22, 2012. (Tr. 12, 267-272). In

his application, Plaintiff alleges being disabled due to his back, arms, depression and bipolar. (Tr.
309). Plaintiff alleges an onset date of September 29, 1978. (Tr. 12, 267). This application was
denied initially and again upon reconsideration. (Tr. 12).
After Plaintiff’s application was denied, Plaintiff requested an administrative hearing on his
application, and this hearing request was granted. (Tr. 154-156). Thereafter, on August 6, 2013 and
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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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June 24, 2014, the ALJ held administrative hearings on Plaintiff’s application. (Tr. 44-104, 105-136).
At these hearings, Plaintiff was present and was represented by Rick Spencer. Id. Plaintiff and
Vocational Experts (“VE”) Sarah Moore and Zachariah Langley testified at these hearings. Id. During
this hearing, Plaintiff testified he was born on September 29, 1978. (Tr. 113). As for his education,
Plaintiff testified he did not graduated high school or complete a GED. Id.
On August 28, 2014, after the administrative hearing, the ALJ entered an unfavorable decision
denying Plaintiff’s application. (Tr. 12-28).

The ALJ determined Plaintiff had not engaged in

Substantial Gainful Activity (“SGA”) since May 22, 2012, his application date. (Tr. 14, Finding 1).
The ALJ also determined Plaintiff had the following severe impairments: history of left wrist fracture,
cervical spondylosis, learning disorder, and schizophrenia versus bipolar disorder in partial remission
with medication. (Tr. 14, Finding 2). 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. 14, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 16-25). 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, except he can handle and finger occasionally with his left upper extremity;
limited to jobs that do not require written communication; able to perform work where interpersonal
contact is incidental to the work performed; complexity of tasks is learned and performed by rote, few
variables, little judgment; supervision required is simple, direct and concrete. (Tr. 16, Finding 4).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 26, Finding 5). The ALJ
found Plaintiff unable to perform his PRW. Id. The ALJ then considered whether Plaintiff retained
the capacity to perform other work existing in significant numbers in the national economy. (Tr. 27,
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Finding 9). The VE testified at the administrative hearing on this issue. Id. Based upon that
testimony, the ALJ determined Plaintiff retained the capacity to perform the following occupations:
(1) cotton classer aide with 3,798 such jobs in the nation and 97 such jobs in Arkansas, (2) sandwich
board carrier with 7,306 such jobs in the nation and 54 such jobs in Arkansas, and (3) school crossing
guard with 21,828 such jobs in the nation and 50 such jobs in Arkansas. Id. Because Plaintiff retained
the capacity to perform this other work, the ALJ determined Plaintiff had not been under a disability,
as defined by the Act, since May 22, 2012. (Tr. 28, Finding 10).
Thereafter, Plaintiff requested the review of the Appeals Council. (Tr. 7). On October 20,
2015, the Appeals Council denied this request for review. (Tr. 1-6). On November 6, 2015, Plaintiff
filed his Complaint in this matter. ECF No. 1. The Parties consented to the jurisdiction of this Court
on November 9, 2015. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 10, 16. 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
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,
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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).

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3.

Discussion:
In his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by

substantial evidence in the record. ECF No. 10. Specifically, Plaintiff claims the following: (1) the
ALJ erred in RFC determination, and (2) the ALJ erred in determining severe impairments. ECF No.
10 at 9-15. Because the Court finds the ALJ erred by failing to find his back pain was a severe
impairment, 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 back pain. In December of 2011, Plaintiff
was thrown from the horse and soon after was complaining of back pain. (Tr. 506, 508). On July 25,
2012, Plaintiff underwent a consultative exam by Dr. Anandaraj Subramanium. (Tr. 531-536). A
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history indicated Plaintiff fell off of a roof and injured his back and back pain has been a problem ever
since. (Tr. 531). On physical exam Plaintiff’s hips were limited to 90 degrees flexion and he had
restricted range of motion in the lumbar spine as well. (Tr. 533). Also, Plaintiff was seen on
September 29, 2012 by Dr. Clara Applegate for among other things, back pain. (Tr. 609-612).
Plaintiff indicated he has 6/10 pain on average in his back. Id. Finally, following Plaintiff’s hearing,
records were submitted from October 2014 to the Appeals Council showing MRI results of Plaintiff’s
lumbar spine at L4-5 which indicated a protruding disc causing central canal and neural foraminal
narrowing associated with mild degenerative changes in the lower lumbar area.

(Tr. 839).

Based upon these records, the Court finds this evidence is sufficient to meet the lower standard
for demonstrating Plaintiff’s back pain as “severe.” Because the ALJ erred by not finding this was a
severe impairment, this case must be reversed and remanded.
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 1st day of November 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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