Johnson v. Social Security Administration Commissioner

Filing 7

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 21, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

CLIFFORD JOHNSON
vs.

PLAINTIFF
Civil No. 4:11-cv-04025

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Clifford Johnson (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying his application for
Disability Insurance Benefits (“DIB”) and a period of disability under Title II 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 postjudgment proceedings. ECF No. 3.1 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 application for DIB on August 2, 2007. (Tr. 83-89). Plaintiff alleged he
was disabled due to heart problems, liver and kidney failure, high blood pressure, and a collapsed
vein in the right leg. (Tr. 109). Plaintiff alleged an onset date of June 12, 2007. (Tr. 109). This
application was denied initially and again upon reconsideration. (Tr. 36-46, 54-57). Thereafter,

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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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Plaintiff requested an administrative hearing on his application, and this hearing request was granted.
(Tr. 56-59).
Plaintiff’s administrative hearing was held on June 26, 2009, in Little Rock, Arkansas. (Tr.
17-35). Plaintiff was present and represented by Denver Thornton, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) William Elmore, testified at this hearing. Id. On the date of the hearing,
Plaintiff was thirty-eight (38) years old, which is defined as a “younger person” under 20 C.F.R. §
404.1563(c) (2008), and had a high school education. (Tr. 20-21).
On September 17, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s request
for DIB. (Tr. 8-16). In this decision, the ALJ determined Plaintiff had engaged in Substantial
Gainful Activity (“SGA”) through 2007 (Tr. 14, Finding 2). The ALJ determined Plaintiff had
severe impairments of coronary artery disease; history of renal failure (resolved); post cardiac arrest;
liver failure (resolved); alcoholism in remission; and deep vein thrombosis (DVT) in his leg. (Tr.
15, Finding 3). The ALJ also determined the Plaintiff did not have an impairment or combination
of impairments that met or medically equaled one of the listed impairments contained in the Listing
of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 15, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his
Residual Functional Capacity (“RFC”). (Tr. 15, Findings 4,5). First, the ALJ 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 activity, including lifting no more
than 20 pounds at a time and frequently lifting or carrying objects weighing up to 10 pounds. (Tr.
15, Findings 5,7).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr.15, Finding 6). The ALJ

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determined Plaintiff’s PRW included work as a poultry line loader and service floorman. (Tr. 15).
Based upon his RFC, the ALJ determined Plaintiff would be unable to perform this PRW. Id.
The ALJ then used Medical-Vocational Guidelines Rule 202.21 to reach a conclusion of “not
disabled,” based on Plaintiff’s age, education, vocational background, and residual functional
capacity. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 202.21. (Tr. 15, Finding 11). The ALJ then
determined Plaintiff had not been under a “disability,” as defined by the Act, at any time through the
date of his decision. (Tr. 15, Finding 12).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 4). See 20 C.F.R. § 404.984(b)(2). On December 30, 2008, the Appeals Council declined to
review this determination. (Tr. 1-3). On March 11, 2011, Plaintiff appealed the ALJ’s decision to
this Court. ECF No. 1. Both parties have filed appeal briefs. ECF Nos. 5, 6. The parties consented
to the jurisdiction of this Court on April 12, 2011. ECF No. 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)
(2006); 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

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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
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

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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 his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 5 at 3-18. Specifically, Plaintiff claims the ALJ erred
(1) in evaluating his subjective complaints, (2) in failing to find Plaintiff’s obesity a severe
impairment, and (3) in his use of the Medical-Vocational Guidelines to reach a conclusion of “not
disabled.” In response, the Defendant argues the ALJ did not err in any of his findings. ECF No.
6. Because this Court finds the ALJ erred in his use of the Medical-Vocational Guidelines to reach
a conclusion of “not disabled.”, this Court will only address this issue Plaintiff raised.
Plaintiff argues the ALJ erred by failing to include Plaintiff’s nonexertional limitations in
his RFC determination. Defendant argues the ALJ’s determination that Plaintiff has the RFC for
light work activity is supported by substantial evidence.
Prior to Step 4 of the sequential analysis, the ALJ is required to determine the claimant’s
RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must be based on medical
evidence that addresses the claimant’s ability to function in the workplace. See Stormo v. Barnhart,
377 F.3d 801, 807 (8th Cir. 2004). The ALJ should also consider “‘all the evidence in the record’
in determining the RFC, including ‘the medical records, observations of treating physicians and
others, and an individual’s own description of his limitations.’” Stormo v. Barnhart, 377 F.3d 801,
807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002)). The Plaintiff
has the burden of producing documents to support his or her claimed RFC. See Cox, 160 F.3d at
1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).

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Once the Plaintiff meets that burden, the ALJ bears the primary responsibility for making the
RFC determination and for ensuring that there is “some medical evidence” regarding the claimant’s
“ability to function in the workplace” that supports his or her RFC determination. Lauer v. Apfel,
245 F.3d 700, 703-04 (8th Cir. 2001). The ALJ also has the duty to develop the record, fully and
fairly, even where a claimant is represented by counsel. See Snead v. Barnhart, 360 F.3d 834, 838
(8th Cir. 2004). The ALJ is responsible for developing the record because the social security
hearings are non-adversarial. Id. Furthermore, this Court is required to affirm the ALJ’s RFC
determination if that determination is supported by substantial evidence on the record as a whole.
See McKinney v. Apfel, 228 F.3d 860, 862 (8th Cir. 2000).
If the ALJ properly determines a claimant’s RFC is not significantly diminished by a
nonexertional limitation, then the ALJ may rely exclusively upon the Grids and is not required to
hear the testimony from a VE. However, the ALJ may not apply the Grids, and must hear testimony
from a VE, where a claimant’s RFC is significantly diminished by a nonexertional limitation. See
McGeorge v. Barnhart, 321 F.3d 766, 768-69 (8th Cir. 2003)
A “nonexertional limitation” is a limitation or restriction which affect a claimant’s “ability
to meet the demands of jobs other than the strength demands.” 20 C.F.R. § 404.1569a(a)(emphasis
added). Nonexertional limitations include the following: (1) difficulty functioning due to pain; (2)
difficulty functioning due to nervousness, anxiety, or depression; (3) difficulty maintaining attention
or concentration; (4) difficulty understanding or remembering detailed instructions; (5) difficulty
seeing or hearing; (6) difficulty tolerating a physical feature of a certain work setting (such as dust
or fumes); or (7) difficulty performing the manipulative or postural functions of some work such as
reaching, handling, stooping, climbing, crawling, or crouching. See 20 C.F.R. § 404.1569a(c)(1)
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While the ALJ has the responsibility to determine the RFC, it is still the Plaintiff’s burden,
and not the Commissioner’s burden, to prove functional capacity. See Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004). The ALJ found Plaintiff had the RFC for the full range of light work. (Tr.
15). Based on the finding that Plaintiff could perform the full range of light work, the ALJ did not
seek the testimony of a VE to support his RFC determination. However the RFC determination is
not supported by substantial evidence because of the existence of nonexertional limitations as
discussed below.
Plaintiff argues the ALJ failed to find his obesity as an impairment. Plaintiff is 6' tall and
weighed 350 pounds at the time of his hearing on June 26, 2009. (Tr. 20). In June of 2007, Plaintiff
suffered a heart attack. At that time his weight was 230 pounds. (Tr. 21). Medical records show
Plaintiff was diagnosed as obese even when he weighed significantly less. On October 5, 2007,
Plaintiff was treated at the Medical Center of South Arkansas for complaints of chest pain. (Tr. 361372). When discharged, Plaintiff was diagnosed, among other things, with obesity. (Tr. 362). One
month prior to this treatment, Plaintiff weighed 252 pounds. (Tr. 226). Plaintiff has also been
diagnosed with hypertension and heart disease. (Tr. 163, 219, 276). Obesity, hypertension, and heart
disease are considered to be nonexertional impairments. See Evans v. Chater, 84 F3d. 1054, 1056
(8th Cir). Also, Plaintiff’s testimony indicates he has had trouble with certain functions such as
walking, bending, climbing, and using stairs. (Tr. 27-28). Plaintiff also indicated experiencing
fatigue as a result of his health. (Tr. 27).
After reviewing the record, this Court finds the ALJ’s RFC determination is not supported
by substantial evidence because the existence of nonexertional limitations should be included in any
decision regarding the Plaintiff’s RFC. These nonexertional limitations, include obesity,
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hypertension and heart disease. When the ability to perform a full range of work for a particular
exertional level is compromised by the existence of nonexertional limitations, the ALJ is required
to consult a VE regarding the effect of those limitations on the availability of work. See Beckley v.
Apfel, 152 F.3d 1056, 1060 (8th Cir. 1998). This matter should be remanded for the purpose of
addressing Plaintiff’s nonexertioanl limitations and, if needed, the testimony of a VE regarding the
effect of all such limitations on the availability of work for the Plaintiff.2
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 21st day of February, 2012.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
this appeal.

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