Jennings v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable Barry A. Bryant on January 30, 2012. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
RANDY RAY JENNINGS
Civil No. 6:11-cv-06006
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Randy Ray Jennings (“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 Supplemental Security Income (“SSI”) 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.
Plaintiff protectively filed an application for SSI on November 1, 2006. (Tr. 12, 77-79). In
this application, Plaintiff alleged he was disabled due to lung and arthritis problems. (Tr. 86-87).
Specifically, Plaintiff claimed the following regarding his impairments: “I have back and shoulder
pain due to injuries. I cannot lift, bend, or twist. If I sit or stand for very long I have more pain.”
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.”
(Tr. 87). Plaintiff alleged on onset date of January 1, 1995. (Tr. 12, 77). This application was
denied initially and again upon reconsideration. (Tr. 47-48).
Thereafter, Plaintiff requested an administrative hearing on his application, and this hearing
request was granted. (Tr. 57-76). An administrative hearing was held on March 4, 2009 in Hot
Springs, Arkansas. (Tr. 27-46). Plaintiff was present and was represented by Virginia Hollished
at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Beth Clem testified at the hearing. Id.
On the date of this hearing, Plaintiff was forty-nine (49) years old, which is defined as a “younger
person” under 20 C.F.R. § 404.1563(c) (2008), and had completed the tenth grade in school. (Tr.
On May 22, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s application.
(Tr. 12-20). In this decision, the ALJ determined Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since November 1, 2006, his application date. (Tr. 14, Finding 1). The ALJ
determined Plaintiff had the following severe impairments: depression, degenerative disc disease,
degenerative joint disease, anxiety, and bronchitis. (Tr. 14, Finding 2). The ALJ also determined
none of Plaintiff’s impairments met the Listing of Impairments in Appendix 1 to Subpart P of
Regulations No. 4 (“Listings”). (Tr. 14-15, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 15-18, Finding 4). First, the ALJ evaluate Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined, based upon his
review of Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record,
that Plaintiff retained the RFC to perform the following:
After careful consideration of the entire record, the undersigned finds the claimant
has residual functional capacity to perform the full range of light work as defined in
20 CFR 416.967(b). Non-exertionally, he is able to maintain interpersonal contact
that is routine but superficial; perform tasks that are no more complex than those
learned by experience and which may involve several variables; use of judgment is
within normal limits; and little supervision is needed for routine tasks but detailed
supervision required for non-routine tasks.
(Tr. 15-18, Finding 4).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18-19, Finding 5). The
VE testified at the administrative hearing regarding this issue. (Tr. 43-45). Based upon that
testimony, the ALJ determined Plaintiff had PRW as an apartment complex maintenance worker
(semi-skilled, medium). Id. Considering his RFC, the ALJ found Plaintiff was unable to perform
his PRW. (Tr. 18-19, Finding 5).
The ALJ also determined, however, that there was other work Plaintiff could perform in the
national economy, considering his age, education, work experience, and RFC. (Tr. 19-20, Finding
9). The ALJ based this finding upon the testimony of the VE. Id. The VE testified, considering all
Plaintiff’s vocational factors, that a hypothetical person would be able to perform the requirements
of representative occupations such as a security guard with 3,400 such jobs in the state and 322,000
such jobs in the nation or as an inspector with 5,300 such jobs in the state and 300,000 such jobs in
the nation. (Tr. 43-45). Based upon this testimony, the ALJ determined Plaintiff had not been under
a disability as defined by the Act since November 1, 2006 (the date the application was filed)
through May 22, 2009 (the date of the decision). (Tr. 20, Finding 10).
Thereafter, Plaintiff requested that the Appeals Council review the ALJ’s unfavorable
decision. (Tr. 4). See 20 C.F.R. § 404.968. On November 24, 2010, the Appeals Council declined
to review this unfavorable decision. (Tr. 1-3). On January 28, 2011, Plaintiff filed the present
appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on February 16, 2011.
ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 9, 12. This case is now ready for
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
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).
In his appeal brief, Plaintiff claims the following: (1) his impairments in combination are
disabling; (2) the ALJ improperly determined his left shoulder impairment was non-severe; and (3)
the ALJ improperly concluded he retained the RFC to perform light work activity.2 ECF No. 11.
Because this Court finds the ALJ erred by determining his left shoulder impairment was non-severe,
this Court will only address Plaintiff’s second argument for reversal.
In his briefing, Plaintiff’s argument headers actually only state two claims. ECF No. 11. Upon review,
however, it is clear Plaintiff raises three arguments for reversal. Importantly, Plaintiff argues at length that the ALJ
should have found his left shoulder impairment was severe.
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, 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)
(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 not severe, the ALJ’s disability
determination must be reversed and remanded. See Nicola, 480 F.3d at 887.
In the present action, Plaintiff claims he was disabled due to a left shoulder impairment. (Tr.
35, 86-87). The ALJ, however, found Plaintiff only suffered from the following severe impairments:
depression, degenerative disc disease, degenerative joint disease, anxiety, and bronchitis. (Tr. 14,
Finding 2). In making this finding, the ALJ determined Plaintiff’s left shoulder impairment was
non-severe and did not meet the low or de minimis standard as articulated by the Eighth Circuit and
the U.S. Supreme Court. That determination was in error. While this impairment may not
necessarily be disabling, the medical evidence demonstrates Plaintiff’s left shoulder impairment
causes more than slight abnormalities, which is all that is required for an impairment to be
For example, the medical records demonstrate that in November of 2003, an MRI scan of
Plaintiff’s left shoulder disclosed a tear of the left supraspinatus tendon or rotator cuff. (Tr. 155167). On February 16, 2004, Plaintiff returned for a follow-up appointment to evaluate this tear.
(Tr. 177). As a result of this tear and because Plaintiff was apparently continually suffering from
pain in his shoulder, Plaintiff’s doctor recommended surgery for his rotator cuff and stated “[w]e
will plan on scheduling surgery some time in the near future.”3 Id.
After 2004 and throughout the medical records until the date of this hearing, Plaintiff has
complained of left shoulder pain. (Tr. 200, 210, 232). As of the date of the administrative hearing
on March 4, 2009, Plaintiff was still reportedly suffering from shoulder pain that caused him to be
unable to work. (Tr. 31-32, 35-36). Based upon these earlier records, that shoulder pain appears
to be supported by the medical record.
Considering this information, the ALJ should have determined Plaintiff’s shoulder
impairment caused him more than a slight abnormality. Because it caused more than a slight
abnormality, it should have been found to be severe. Thus, at the very least, the ALJ should have
found Plaintiff’s left shoulder pain was a severe impairment, and 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
Based upon the record, it appears Plaintiff did not undergo this surgery on his rotator cuff. Plaintiff
testified at the administrative hearing that he missed the surgery because the surgery was scheduled in Little Rock on
short notice, and he could not travel to Little Rock because he was given such short notice. (Tr. 38). Further,
Plaintiff testified that this surgery was a “charity” slot that could not be rescheduled, and he could not afford the
surgery otherwise. Id. It appears Defendant disputes whether Plaintiff’s failure to have this surgery performed was
justified. The issue of whether Plaintiff was justified in not having this surgery may be properly considered in
evaluating Plaintiff’s RFC, but the ALJ should have still found Plaintiff’s shoulder impairment was severe.
52 and 58.
ENTERED this 30th day of January, 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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