Anderson v. Social Security Administration Commissioner

• Court: District Court, W.D. Arkansas
• Decided: February 5, 2018
• Docket: 4:17-cv-04009
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION KENNY D. ANDERSON PLAINTIFF vs. Civil No. 4:17-cv-04009 NANCY BERRYHILL DEFENDANT Commissioner, Social Security Administration MEMORANDUM OPINION Kenny Anderson (“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 Supplemental Security Income (“SSI”) under Titles II and 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. 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 SSI was filed on May 25, 2012 and for DIB on September 22, 2015. (Tr. 9). Plaintiff alleged he was disabled due to a broken bone in his neck, pain in fingers, and no feelings on right side. (Tr. 278). Plaintiff alleged an onset date of May 18, 2012. (Tr. 9). These applications were denied initially and again upon reconsideration. Id. Thereafter, Plaintiff requested an administrative hearing on his applications and this hearing request was granted. (Tr. 136).

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 Plaintiff’s initial administrative hearing was held on May 30, 2013. (Tr. 58-84). Following this, on July 17, 2013, the ALJ issued an unfavorable decision, which the Appeals Council remanded on September 22, 2014. (Tr. 108-118, 122-124). Following remand, the ALJ held a second hearing on April 6, 2016. (Tr. 29-57). Plaintiff was present and was represented by counsel, Charles Padgham, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Diana Kizer testified at this hearing. Id. At the time of this hearing,

Plaintiff was forty-two (48) years old and had an eighth grade education. (Tr. 35, 53). On May 2, 2016, the ALJ entered an unfavorable decision denying Plaintiff’s applications for DIB and SSI. (Tr. 9-23). In this decision, the ALJ determined the Plaintiff met the insured status requirements of the Act through December 31, 2017. (Tr. 11, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 18, 2012, the alleged onset date. (Tr. 11, Finding 2). The ALJ determined Plaintiff had the severe impairments of degenerative disc disease status post cervical fusion with residuals after December 8, 2012 and seizures. (Tr. 12, 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.

15, Finding 4). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC. (Tr. 16-21). First, the ALJ indicated he 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 with unlimited stooping; no more than occasional climbing of ramps and stairs but no climbing of ladders, ropes, and scaffolds; occasional balancing and kneeling with no crouching and crawling; occasional overhead reaching with the left arm; and occasional grasping 2 and feeling with the left hand. (Tr. 16). The ALJ also determined Plaintiff possessed an additional limitation against moderate exposure to hazards such as open flames, unprotected heights, and dangerous moving machinery beginning on December 8, 2014. Id. The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 21, Finding 6). The ALJ found Plaintiff was unable to perform his PRW. Id. The ALJ, however, also determined there was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 22,

finding 10). The ALJ based this determination upon the testimony of the VE. Id. Specifically, the VE testified that given all Plaintiff's vocational factors, prior to December 8, 2014, a hypothetical individual would be able to perform the requirements of representative occupations such as conveyor line bakery worker with 35,000 such jobs in the nation and counter clerk with 40,000 such jobs in the nation. After December 8, 2014, Plaintiff would be able to perform the requirements of representative occupations such as conveyor line bakery worker with 35,000 such jobs in the nation and dealer account investigator with 42,000 such jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff had not been under a disability as defined by the Act from May 8, 2012, through the date of the decision. (Tr. 23, Finding 11). Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 5). See

20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-4). On February 28, 2017, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on March 16, 2017. ECF No. 8. Both Parties have filed appeal briefs. ECF Nos. 12, 13. 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) 3 (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) 4 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). 3. Discussion: Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to find Plaintiff met a Listing and (B) and in assessing Plaintiff’s RFC. ECF No. 12, Pgs. 4-20. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 13. A. Listings 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 status post cervical fusion with residuals after December 8, 2012, and seizures. (Tr. 12, 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) 5 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 first argues he meets a Listing under Section 1.04 for disorders of the spine. ECF No. 12, Pgs. 4-12. A listing under 1.04 for disorders of the spine, is defined as: 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 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. 6 Additionally, Plaintiff’s ability to ambulate effectively was unimpaired. Plaintiff also argues he meets a Listing under Section 1.02 major joint dysfunction and 11.14 for peripheral neuropathy. ECF No. 12, Pgs. 12-17. Plaintiff argues the ALJ erred by failing to even discuss these two Listings. Id. Defendant argues Plaintiff has failed to establish he meets these Listings. ECF No. 13.

While the ALJ did not expressly discuss these listings in the decision, he did not have to do so because substantial evidence shows Plaintiff did not meet or equal either of the listings. See Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 722, n.3 (8th Cir. 2005). Although it is preferable that the ALJ address a specific listing, failing to do so is not reversible error if the record supports the overall conclusion. See Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003). 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, 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, § 7 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 he is unable to ambulate effectively. Plaintiff presented no evidence he 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 he has a major dysfunction of a joint characterized by gross anatomical deformity, and findings on 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. 8 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. Plaintiff also argues he meets Listing 11.14 for peripheral neuropathy. However, Plaintiff did not show he met Listing 11.14. The records relied on by Plaintiff fail to provide any evidence showing Plaintiff meets the criteria of a Listing under Section 11.14.

In order to meet Listing 11.14, Plaintiff must have peripheral neuropathies “with disorganization of motor function as described in 11.04B, in spite of prescribed treatment.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.14. Listing 11.04B requires “significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station” Id. §11.04B. “Persistent disorganization of motor function in the form of paresis or paralysis, tremor or other involuntary movements, ataxia and sensory disturbances (any or all of which may be due too cerebral, cerebellar, brain stem, spinal cord,

or peripheral nerve dysfunction) which occur singly or in various combinations, frequently provides the sole or partial basis for decision in cases of neurological impairment. The assessment of impairment depends on the degree of interference with locomotion and/or interference with the use of fingers, hands, and arms.” Id. § 11.00C. 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. 9 B. RFC Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required to determine a 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 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 and evidence to support his or her claimed RFC. See Cox, 160 F.3d at1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The ALJ, however, bears the primary responsibility for making the RFC determination and for ensuring there is “some medical evidence” regarding the claimant’s “ability to function in the workplace” that supports the RFC determination. Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir. 2001). 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).

In this matter, the ALJ determined Plaintiff retained the RFC to perform light work with unlimited stooping; no more than occasional climbing of ramps and stairs but no climbing of ladders, ropes, and scaffolds; occasional balancing and kneeling with no crouching and crawling; occasional overhead reaching with the left arm; and occasional grasping and feeling with the left hand. (Tr. 16). The ALJ also determined Plaintiff possessed an additional limitation against moderate exposure to hazards such as open flames, unprotected heights, and dangerous moving machinery beginning on December 8, 2014. Id. Plaintiff argues the ALJ erred in this RFC determination. ECF No. 12, Pgs. 10 17-20. However, substantial evidence supports the ALJ’s RFC determination. In his opinion, 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 his limitations. Plaintiffhas the burden of demonstrating his alleged limitations. See, e.g., Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000). Without more, the Court cannot find the ALJ erred in assessing his RFC. The mere fact Plaintiff suffers from a number of different impairments does not demonstrate he is disabled due to those impairments Substantial evidence supports the ALJ’s RFC determination. Plaintiff has the burden of establishing his claimed RFC. See Goffv. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)). Because Plaintiff has not met his burden in this case and because the ALJ’s RFC determination is supported by sufficient medical evidence, this Court finds the ALJ’s RFC determination should be affirmed. 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 these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58. ENTERED this 5th day of February 2018. /s/__ Barry A. Bryant HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE