Ward v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 6, 2013. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 4:12-cv-04058
CAROLYN W. COLVIN
Commissioner, Social Security Administration
DeLois Ward (“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 application for a
period of disability and Disability Insurance Benefits (“DIB”) 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. 5.1 Pursuant to this authority, the Court issues this memorandum
opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed her DIB application on May 14, 2009. (Tr. 11, 99-102). In her
application, Plaintiff alleges being disabled due to spinal stenosis, arthritis of joints, high blood
pressure, and fluid retention. (Tr. 116). Specifically, she alleges these impairments cause her the
following limitations: “I can’t stand very long at a time, I can’t sit very long at a time and I can’t
walk very far at a time.” Id. Plaintiff alleges an onset date of November 11, 2007. (Tr. 11, 99).
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.”
This application was denied initially and again upon reconsideration. (Tr. 36-37).
Thereafter, Plaintiff requested an administrative hearing on her application, and this hearing
request was granted. (Tr. 46-47, 55-60). Plaintiff’s administrative hearing was held on January 20,
2011 in Texarkana, Arkansas. (Tr. 23-35). Plaintiff was present and was represented by Greg Giles.
Id. Plaintiff and Vocational Expert (“VE”) Jerry Hildre testified at this hearing. Id. During the
administrative hearing in this matter, Plaintiff testified she was fifty-two (52) years old, which is
defined as a “person closely approaching advanced age” under 20 C.F.R. § 404.1563(d) (DIB). (Tr.
25). Plaintiff also testified she had obtained her GED. (Tr. 26).
On February 22, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB. (Tr. 8-18). In this decision, the ALJ determined Plaintiff had last met the
insured status requirements of the Act on March 31, 2009. (Tr. 13, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) during the period from her alleged
onset date of November 11, 2007 through her date last insured of March 31, 2009. (Tr. 13, Finding
2). The ALJ determined Plaintiff’s one “medically determinable impairment” was arthritis. (Tr. 1314, Finding 3).
The ALJ, however, also determined that this impairment did not “significantly limit” her in
her ability to perform basic work-related activities for twelve consecutive months. (Tr. 15-17,
Finding 4). Based upon this finding, the ALJ determined Plaintiff did not suffer from a severe
impairment or combination of impairments during the relevant time period. Id. Because he
determined Plaintiff had not suffered from a severe impairment or combination of impairments
during the relevant time period, he also found she had not been under a disability as defined in the
Act at any time from November 11, 2007 (alleged onset date) through March 31, 2009 (date last
insured). (Tr. 18, Finding 5).
Thereafter, on March 8, 2011, Plaintiff requested the Appeals Council’s review of the ALJ’s
unfavorable decision. (Tr. 7). On May 1, 2012, the Appeals Council declined to review this
unfavorable decision. (Tr. 1-3). On June 1, 2012, Plaintiff filed the present appeal. ECF No. 1. The
Parties consented to the jurisdiction of this Court on June 13, 2012. ECF No. 5. Both Parties have
filed appeal briefs. ECF Nos. 8-9. This case is now ready for decision.
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).
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).
Plaintiff raises the following three arguments for reversal: (1) the ALJ erred by failing to
consider Listings 1.00Q and 1.00(B)(2)(b) and (d); (2) the ALJ erred in taking the state agency’s
medical examiners’ opinions over those of her treating physician; and (3) the ALJ erred in
discrediting her non-exertional limitations, including her ability to stand, walk, and sit with her
morbid obesity and her chronic back and knee pain. ECF No. 8 at 1-21. In response, Defendant
argues that substantial evidence supports the ALJ’s decision that Plaintiff does not have a severe
impairment, Plaintiff did not meet her burden of establishing her impairments met or equaled the
requirements of a Listing, the ALJ gave proper weight to the opinion of Plaintiff’s treating physician,
and the ALJ properly evaluated Plaintiff’s credibility. ECF No. 9 at 1-12. Because the Court finds
the ALJ erred in finding her back pain was a non-severe impairment, the Court will only address this
argument for reversal.
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 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 the present action, Plaintiff alleges she suffers from back pain that causes her to be unable
to work. (Tr. 26-28). Since her alleged onset date of November 11, 2007, Plaintiff has consistently
received treatment for her back pain from the Free Christian Clinic in Nashville, Arkansas. (Tr. 184203, 253-269). Although less consistently, Plaintiff has also received treatment for her back pain
from Dr. Clay W. Ferguson, M.D. (Tr. 271-295). Plaintiff’s insured status expired on March 31,
2009. (Tr. 13, Finding 1). One year after Plaintiff’s insured status expired, Dr. Ferguson completed
a questionnaire opining Plaintiff would be unable to perform even sedentary work with her
limitations. (Tr. 248-251). On January 6, 2011, approximately two years after her insured status
expired, Dr. Ferguson stated that Plaintiff had a “long hx [history] of spinal stenosis with pain.” (Tr.
282). Presumably, this “long hx [history]” references back to at least 2009, a time prior to her
insured status expiring. During this appointment in 2011, Dr. Ferguson also ordered an MRI of her
lumbar spine. (Tr. 274). Even though this MRI was taken two years after her insured status expired,
it reflects Plaintiff suffers from degenerative disc disease of her lumbar spine. Id.
Despite this medical documentation, the ALJ still found Plaintiff’s back pain was not a
severe impairment. In making this determination, the ALJ entirely disregarded Plaintiff’s treatment
records from the Free Christian Clinic, the opinion of Dr. Ferguson, and Plaintiff’s MRI results.
Although a few of these records are dated during a time period after Plaintiff’s insured status
expired, the ALJ should have nevertheless assigned them some weight in determining whether she
suffered from a severe impairment since they also reference her long history of back pain. Further,
Plaintiff’s case is not a situation where there are no medical records during the relevant time period
(from her alleged onset date until her insured status expired). Indeed, Plaintiff consistently received
treatment for back pain from Free Christian Clinic in Nashville, Arkansas from her alleged onset date
forward. (Tr. 184-203, 253-269). Accordingly, the Court finds these records provide sufficient
evidence demonstrating Plaintiff’s back pain satisfies the low or de minimis standard for establishing
a severe impairment. Because the ALJ improperly determined Plaintiff’s back pain was not
supported by her medical records and was not severe, this case must be reversed and remanded. See
Nicola, 480 F.3d at 887.
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 May 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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