Davis v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on June 6, 2017. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
KIM L. DAVIS
vs.

PLAINTIFF
Civil No. 3:16-cv-03076

NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Kim L. Davis (“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 applications for
Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and a period of
disability 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. 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 her disability applications on August 3, 2012. (Tr. 11). In her

applications, Plaintiff alleges being disabled due to fibromyalgia, migraines, and pain. (Tr. 182).
During the administrative hearing in this matter, Plaintiff also alleged being disabled due to urinary
incontinence: “I have issues with my bladder, frequent urination and constantly feel like I have to

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.”

1

go to the bathroom, and I have to cath at least eight times a day which I need help doing that because
I can’t get it right.” (Tr. 39). Plaintiff alleged an onset date of January 1, 2011 but later amended
that alleged onset date to June 5, 2012. (Tr. 11). These applications were denied initially and again
upon reconsideration. (Tr. 65-76).
After Plaintiff’s applications were denied, Plaintiff requested an administrative hearing on
her applications, and this hearing request was granted. (Tr. 126). Thereafter, on September 23,
2014, the SSA held an administrative hearing on Plaintiff’s applications. (Tr. 28-64). At this
hearing, Plaintiff was present and was represented by Mark Maske. Id. Plaintiff and Vocational
Expert (“VE”) Dr. Magrowski testified at this hearing. Id.
On January 6, 2015, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s applications. (Tr. 8-24). The ALJ found Plaintiff met the insured status
requirements of the Act through March 31, 2015. (Tr. 13, Finding 1). The ALJ determined Plaintiff
had not engaged in Substantial Gainful Activity (“SGA”) since June 5, 2012, her amended alleged
onset date. (Tr. 13, Finding 2). The ALJ determined Plaintiff had the following severe impairments:
fibromyalgia, migraine headaches, and depression. (Tr. 13-15, Finding 3). The ALJ also determined
Plaintiff’s impairments did not meet or medically equal the requirements of any of the Listings of
Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 15-17, Finding 4).
The ALJ determined Plaintiff was thirty-nine (39) years old, which is defined as a “younger
person” under 20 C.F.R. § 416.963(c) (2008) (SSI) and 20 C.F.R. § 404.1563(c) (2008) (DIB). (Tr.
22, Finding 7). As for her education, the ALJ determined Plaintiff had at least a high school
education and was able to communicate in English. (Tr. 22, Finding 8).
The ALJ then evaluated Plaintiff’s subjective complaints and assessed her Residual

2

Functional Capacity (“RFC”). (Tr. 17-22, Finding 5). After assessing her subjective complaints,
the ALJ determined her allegations were not entirely credible and found she retained the following
RFC:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CR 404.1567(b)
except that she is limited to work that involves simple tasks with simple instructions
of a nature that can be learned within a short demonstration period of up to thirty
days. The claimant can maintain concentration, persistence, and pace in this limited
range of tasks for two hours at a time before taking a normally scheduled break and
returning to work.
Id. The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 22, Finding 6).
Considering his RFC, the ALJ determined Plaintiff could not perform any of her PRW.
The ALJ also considered whether Plaintiff retained the capacity to perform other work
existing in significant numbers in the national economy. (Tr. 23, Finding 10). The VE testified at
the administrative hearing regarding this issue. Id. Based upon that testimony, the ALJ determined
Plaintiff retained the capacity to perform the following three occupations: (1) mail clerk (light,
unskilled) with 75,000 such jobs in the national economy; (2) office helper (light, unskilled) with
80,000 such jobs in the national economy; and (3) cashier II (light, unskilled) with 1,000,000 such
jobs in the national economy. (Tr. 23). Based upon this finding, the ALJ determined Plaintiff had
not been under a disability, as defined in the Act, from her alleged onset date of June 5, 2012. Id.
Thereafter, Plaintiff requested the review of the Appeals Council. On April 26, 2016, the
Appeals Council denied this request for review. (Tr. 1-3). On June 20, 2016, Plaintiff filed her
Complaint in this matter. ECF No. 1. The Parties consented to the jurisdiction of this Court on June
21, 2016. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 10, 12. This case is now
ready for decision.
3

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).
4

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. 10. Specifically, Plaintiff raises two issues in her appeal
brief: (1) the ALJ erred in finding her urinary incontinence was not a “severe” impairment; and (2)
the ALJ erred in assessing her RFC. ECF No. 10 at 9-15. Because the Court finds the ALJ erred by
finding her urinary incontinence was non-severe, 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
5

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 her urinary incontinence. (Tr. 39). In his
opinion, the ALJ recognized this impairment and found the following:
There is evidence that the claimant has attempted various therapies to alleviate her
incontinence symptoms, such as InterStimp Implant and prescriptions for VESIcare
and Myrbetriq (see generally Exhibit B12F). Concurrently, the claimant used pads
or adult diapers to prevent accidents that could cause her pants to become wet (Audio
Hearing Record at 11:32 AM). The claimant stated that she changes these pads twice
daily (Exhibit B12F at 10). Wearing and changing pads no more than minimally
limits the claimant’s basic work activities, and therefore the claimant’s urinary
incontinence is nonsevere.
(Tr. 14).
Interestingly, apart from his opinion on this matter, the ALJ does not explain how Plaintiff’s
urinary impairment is not severe considering these findings. Further, also in Plaintiff’s medical
records, her doctor noted that due to this impairment, Plaintiff had been using the restroom every ½
to hour and “has the feeling of frequency, urgency, need to get to the bathroom and cannot make it
6

fast enough.” (Tr. 625).
Accordingly, the Court cannot find the ALJ’s determination on this issue–that Plaintiff’s
urinary incontinence is non-severe– is supported by substantial evidence in the record. Thus, this
case must be reversed and remanded for further consideration of this issue.
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 6th day of June 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

7