Ramirez v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 19, 2017. (mjm)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
Civil No. 6:16-cv-06078
NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration
Elizabeth Ramirez (“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
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. 7.1 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 disability application on July 8, 2013. (Tr. 8). In her
application, Plaintiff alleges being disabled due to drug and alcohol addiction, arthritis, and anxiety.
(Tr. 191). Plaintiff alleges an onset date of July 8, 2013. (Tr. 8). This application was denied
initially and again upon reconsideration. (Tr. 50-85).
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.”
Thereafter, Plaintiff requested an administrative hearing on her denied application. (Tr. 104106). The ALJ granted that request and held an administrative hearing on January 6, 2015 in Hot
Springs, Arkansas. (Tr. 24-49). At that hearing, Plaintiff as present and was represented by Hans
Pullen. Id. Plaintiff and Vocational Expert (“VE”) Mack Welch testified at this hearing. Id. At this
hearing, Plaintiff testified she was forty-six (46) years old, which is defined as a “younger person”
under 20 C.F.R. § 416.963(c). (Tr. 29). As for his level of education, Plaintiff testified she had
obtained her GED. Id.
After this hearing, on May 14, 2015, the ALJ entered an unfavorable decision denying
Plaintiff’s disability application. (Tr. 5-18). In this decision, the ALJ found Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”) since July 8, 2013, her application date. (Tr. 10,
Finding 1). The ALJ determined Plaintiff had the following severe impairments: degenerative disc
disease of the cervical spine status post fusion at C6-7; mild degenerative disc disease of the lumbar
spine; fibromyalgia; carpal tunnel syndrome; affective disorder; and anxiety disorder. (Tr. 10,
Finding 2). Despite being severe, the ALJ determined these 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. 10-12, Finding 3).
The ALJ considered Plaintiff’s Residual Functional Capacity (“RFC”). (Tr. 12-16, Finding
4). First, the ALJ 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 the
The claimant retains the residual functional capacity to lift and carry 10 pounds
occasionally and less than 10 pounds frequently; stand and/or walk six hours in an
eight-hour workday; sit for six hours in an eight-hour workday; and push/or pull 10
pounds occasionally and less than 10 pounds frequently. She can occasionally reach
overhead with both left and right arms. The claimant retains the mental ability to
understand, remember and carryout simple job instructions; make judgments in
simple work related situations; respond appropriately to co-workers/supervisors with
occasional incidental contact that is not necessary to perform the work; respond
appropriately to minor changes in usual work routine; and have no dealings with the
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff has no
PRW. (Tr. 16, Finding 5). The ALJ also considered whether Plaintiff retained the capacity to
perform other work existing in significant numbers in the national economy. (Tr. 17-18, Finding 9).
The VE testified at the administrative hearing regarding this issue. Id.
Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform
occupations such as the following (sedentary, unskilled): (1) inspector checker (ceramic tile
inspector) with 30,000 such jobs in the nation, 6,000 such jobs in the region, and 700 such jobs in
the state; and (2) inspector checker (circuit board inspector) with 35,000 such jobs in the nation,
7,000 such jobs in the region, and 700 such jobs in the state. (Tr. 17-18, Finding 9). Because
Plaintiff retained the capacity to perform this other work, the ALJ determined Plaintiff had not been
under a disability, as defined by the Act, from July 8, 2013 (application date) through May 14, 2015
(ALJ’s decision date). (Tr. 18, Finding 10).
Thereafter, Plaintiff requested a review by the Appeals Council. (Tr. 4). On June 6, 2016,
the Appeals Council denied this request. (Tr. 1-3). Thereafter, on August 8, 2016, Plaintiff appealed
the ALJ’s unfavorable decision to this Court. ECF No. 1. The Parties consented to the jurisdiction
of this Court on August 9, 2016. ECF No. 7. Both Parties have filed appeal briefs. ECF Nos. 11-12.
This case is now ripe for determination.
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 her appeal brief, Plaintiff raises two arguments for reversal: (A) the ALJ improperly
determined her impairments did not meet the requirements of Listings 1.02(c)(d) (carpal tunnel
syndrome) and 1.04 (cervical fusion and restless leg syndrome); and (B) the ALJ erred in assessing
her RFC. ECF No. 11 at 1-17. The Court will address both of these arguments.
Listings 1.02 and 1.04
Plaintiff claims her impairments meet the requirements of the Listings 1.02 and 1.04. ECF
No. 11 at 1-17. Listing 1.02 requires a demonstration of the following:
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(s), and findings
on appropriate medically acceptable imagining of joint space narrowing, bony
destruction, or ankylosis of the affected joint(s). . . .
Listing 1.04 requires a demonstration of the following:
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. . . .
Plaintiff has the burden of demonstrating her impairments meet all the requirements of a given
Listing. See Cox, 160 F.3d at 1206. Upon review of Plaintiff’s argument in this matter, the Court
finds Plaintiff has not met her burden on this issue.
Notably, Plaintiff has not demonstrated which “gross anatomical deformity” she has.
Plaintiff has also not demonstrated which one of the “disorders of the spine” she has. Instead, in her
briefing, Plaintiff claims she suffers from carpal tunnel syndrome and back and neck pain. ECF No.
11 at1-17. Plaintiff, however, again does not demonstrate how these impairments demonstrate she
meets the specific requirements of these Listings. Without more, the Court cannot find Plaintiff has
met her burden on this issue. Indeed, simply because Plaintiff suffers from a number of different
impairments does not demonstrate she is disabled or that her impairments meet the requirements
of Listings 1.02 and 1.04.
Plaintiff claims the ALJ erred in assessing her RFC. ECF No. 11 at 13-17. In making this
argument, Plaintiff again references her impairments and generally claims those impairments cause
her to be disabled. Id. She argues she has “bilateral carpal tunnel syndrome, herniated disc at L3-4,
failed neck surgery syndrome, and restless leg syndrome, bilaterally. Plaintiff cannot sit, stand, and
walk six hours in an eight hour day given these limitations.” Id. Plaintiff also clams she “suffers
symptoms from her fibromyalgia which is chronic and wide spread pain.” Id.
In his opinion, however, the ALJ considered Plaintiff’s alleged impairments and discounted
those he found were not credible. Plaintiff has not referenced any specific limitations the ALJ
improperly assessed or provided any medical evidence or other evidence demonstrating the ALJ
erred in assessing her limitations.
For instance, Plaintiff claims she “cannot sit, stand, and walk six hours in an eight hour day”
given her limitations, but she does not provide evidence demonstrating she has those limitations.
Indeed, as the ALJ recognized, the following findings support his RFC determination:
The record shows the claimant has a poor earnings record and has never worked at
SGA levels. She has a history of drug addiction, but has been clean for the past
several years. She also has a shoplift charge pending in court proceedings. The
claimant alleges a very limited physical ability such as lifting a gallon of milk,
standing a couple of hours, sitting only 30 minutes at a time and walk for two blocks.
However, she reported an extensive list of activities of daily living that included
driving, shopping for groceries, attending AA meetings, attending church on Sundays
and Wednesdays. She takes her grandchild, for whom she is the legal guardian, to
school. She performs household chores such as straighten up the house and washing
dishes. The claimant handles her granddaughters’ school issues. She has friends at
church, a boyfriend and sees her brother on a regular basis. After the claimant’s
cervical fusion in 2013, she had several missed appointments. On January 3, 2014,
she was seen at LEVI Hospital. She was noted to be doing well with the initial visits
but then had several no shows in a row.
Again, without more, the Court cannot find the ALJ erred in assessing her RFC. As noted
above, Plaintiff has the burden of demonstrated she is as limited as she alleges, and the mere fact
Plaintiff suffers from a number of different impairments does not demonstrate she is disabled due
to those impairments.
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
these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 19th day of July 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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