Simon v. Social Security Administration Commissioner

Filing 19

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on August 8, 2016. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
REVIA SIMON
vs.

PLAINTIFF
Civil No. 6:15-cv-06081

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Revia Simon (“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 her application for
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 post-judgment
proceedings. ECF No. 8.1 Pursuant to this authority, the Court issues this memorandum opinion
and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff’s application for DIB was filed on October 18, 2012. (Tr. 11, 123-126). Plaintiff
alleged she was disabled due to posterior cervical surgery, numbness, headaches, and depression.
(Tr. 142). Plaintiff alleged an onset date of July 7, 2011. (Tr. 11, 142). This application was denied
initially and again upon reconsideration. (Tr. 57-78, 83-84). Thereafter, Plaintiff requested an

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

administrative hearing on her application and this hearing request was granted. (Tr. 85-86).
Plaintiff’s administrative hearing was held on March 17, 2014. (Tr. 24-55). Plaintiff was
present and was represented by counsel, Shannon Muse Carroll, at this hearing. Id. Plaintiff, her
husband Stanley Simon, and Vocational Expert (“VE”) Elizabeth Clem testified at this hearing. Id.
At the time of this hearing, Plaintiff was fifty-one (51) years old and had a high school education.
(Tr. 29).
On July 2, 2014, the ALJ entered an unfavorable decision denying Plaintiff’s application for
DIB. (Tr. 11-19). In this decision, the ALJ determined the Plaintiff last met the insured status
requirements of the Act on December 31, 2011. (Tr. 13, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) from July 7, 2011, her alleged
onset date, through his last date of insured of December 31, 2011. (Tr. 13, Finding 2).
The ALJ determined Plaintiff had the severe impairments of degenerative disc disease of the
cervical and lumbar spine, obesity, gastroesophageal reflux disease, and migraine headaches. (Tr.
13, Finding 3). 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. 13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 14-18). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to perform sedentary work except can only occasionally balance, stoop, crouch, crawl, and
never climb ladders, ropes, or scaffolds; should have no exposure to hazards or unprotected heights;
and should never perform overhead reaching duties. (Tr. 14, Finding 5).

2

The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, Finding 6). The ALJ
found Plaintiff was capable of performing perform his PRW as an office manager and document
preparer. Id. Based upon this finding, the ALJ determined Plaintiff had not been under a disability
as defined by the Act from July 7, 2011, through the date last insured of December 31, 2011. (Tr.
19, Finding 7).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 7). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-6).
On August 3, 2015, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on August 25, 2015. ECF No. 8. Both Parties have filed appeal briefs.
ECF Nos. 13, 17. 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)
(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,

3

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).

4

3. Discussion:
Plaintiff brings the present appeal claiming the ALJ erred by failing to find Plaintiff met a
Listing. ECF No. 13, Pgs. 4-14. In response, the Defendant argues the ALJ did not err in any of his
findings. ECF No. 17.
The ALJ must determine whether Plaintiff has a severe impairment that significantly limits
the physical or mental ability to perform basic work activities. A medically determinable impairment
or combination of impairments is severe if it significantly limits an individual’s physical or mental
ability to do basic work activities. See 20 C.F.R. §§ 404.1521 and 416.921.
The ALJ found Plaintiff did suffer from impairments considered to be severe within the
meaning of the Social Security regulations. These impairments included degenerative disc disease
of the cervical and lumbar spine, obesity, gastroesophageal reflux disease, and migraine headaches.
(Tr. 13, Finding 3). However, there was no substantial evidence in the record showing Plaintiff’s
condition was severe enough to meet or equal that of a listed impairment as set forth in the Listing
of Impairments. See 20 C.F.R. pt. 404, subpt. P, app.1. Plaintiff has the burden of establishing that
his impairment(s) meet or equal an impairment set out in the Listing of Impairments. See Sullivan
v. Zebley, 493 U.S. 521, 530-31 (1990). Plaintiff has not met this burden.
Plaintiff argues she meets a Listing under Section 1.02 for major dysfunction of a joint and
Listing 1.04 for disorders of the spine. ECF No. 13, Pgs. 4-14. Defendant argues Plaintiff has failed
to establish she meets theses Listings. ECF No. 17.
Impairments found under Listing 1.02 for major joint dysfunction requires evidence of:
major dysfunction of a joint characterized by gross anatomical
deformity (e.g., subluxation, contracture, bony, or fibrous ankylosis,
instability) and chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion of the affected joint,
5

and findings on appropriate medically acceptable imaging of joint
space narrowing, bony destruction, or ankylosis of the affected joint,
with involvement of one major peripheral weight-bearing joint (i.e.
hip, knee, or ankle), resulting in an inability to ambulate effectively,
as defined in 1.00B2b or involvement of one major peripheral joint
in each upper extremity (i.e., shoulder, elbow, or wrist-hand),
resulting in inability to perform fine and gross movements effectively,
as defined in 1.00B2c.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02.
An “inability to ambulate effectively” is an extreme limitation of the ability to walk, i.e., an
impairment that interferes very seriously with the individual’s ability to independently initiate,
sustain, or complete activities. Ineffective ambulation is having insufficient lower extremity
functioning to permit independent ambulation without the use of a hand-held assistive device(s) that
limits the functioning of both upper extremities. See 20 C.F.R. pt. 404, subpt. P, app. 1, §
1.00B2b(1). To ambulate effectively, individuals must be capable of sustaining a reasonable walking
pace over a sufficient distance to be able to carry out activities of daily living, and they must be able
to travel without companion assistance to and from a place of employment or school. See 20 C.F.R.
pt. 404, subpt. P, app. 1, § 1.00B2b(2). Examples of ineffective ambulation include, but are not
limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability
to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory activities, such as shopping and banking,
and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. Id.
In this matter, Plaintiff has failed to establish she is unable to ambulate effectively. Plaintiff
has no evidence she has to use a walker, two crutches, or two canes to walk, or that a physician
prescribed these items. Further, Plaintiff presented no diagnostic medical evidence showing she has
a major dysfunction of a joint characterized by gross anatomical deformity, and findings on
6

medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected
joints.
An “inability to perform fine and gross movements effectively” means an extreme loss of
function of both upper extremities; i.e., an impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain, or complete activities. To use their upper
extremities effectively, individuals must be capable of sustaining such functions as reaching,
pushing, pulling, grasping, and fingering to be able to carry out activities of daily living. Examples
of inability to perform fine and gross movements effectively include, but are not limited to, the
inability to prepare a simple meal and feed oneself, the inability to take care of personal hygiene, the
inability to sort and handle papers or files, and the inability to place files in a file cabinet at or above
waist level. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2c.
There is no credible evidence showing Plaintiff is prohibited from ambulating effectively
with a major peripheral joint in each upper extremity resulting in inability to perform fine and gross
movements effectively.
Finally, a listing under 1.04 for disorders of the spine, requires evidence of:
disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve
root (including the cauda equina) or the spinal cord with:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology
report of tissue biopsy, or by appropriate medically acceptable
imaging, manifested by severe burning or painful dysesthesia,
resulting in the need for changes in position or posture more than
7

once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established
by findings on appropriate medically acceptable imaging, manifested
by chronic nonradicular pain and weakness, and resulting in inability
to ambulate effectively, as defined in 1.00B2b.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04.
Listing 1.04 requires medical evidence of nerve root compression, sensory or reflex loss, and
a positive straight-leg raising test. 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04(A). Plaintiff has failed
to provide medical evidence that documents the criteria for the listed impairment are met.
Additionally, as demonstrated in the section for Listing 1.02, Plaintiff’s ability to ambulate
effectively was unimpaired.
While the evidence shows she was diagnosed with a nerve root compression in February
2012, it also shows she underwent surgery on her cervical spine that same month (Tr. 245, 247) and
by the end of the month had full range of motion in her neck (Tr. 266, 309), no numbness and
tingling in her arms, normal range of motion, stability, and muscle strength in her spine and lower
extremities, and normal coordination, gait and station. (Tr. 266, 268).
Whether Plaintiff meets a listed impairment is a medical determination and must be
established by medically acceptable clinical and laboratory diagnostic techniques. See 20 C.F.R. §§
404.1525(c), 404.1526(b), 416.925(c), 416.926(b). Plaintiff has not met this burden. I find
substantial evidence supports the ALJ’s determination that Plaintiff did not have an impairment or
combination of impairments equal to one listed in 20 C.F.R. pt. 404, subpt. P, app.1.
4. Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating
8

these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 8th day of August 2016.

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

9