IN UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION
MARK ISOM PLAINTIFF
vs. Civil No. 5:21-cv-05039
KILOLO KIJAKAZA, DEFENDANT Acting Commissioner, Social Security Administration
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Mark Isom (“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 his application for a Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Timothy L. Brooks referred this case to this Court for the purpose of making a report and recommendation. In accordance with that referral, and after reviewing the arguments in this case, this Court recommends Plaintiff’s case be REVERSED AND REMANDED. 1. Background: Plaintiff protectively filed his application for DIB on November 27, 2018, and for SSI on December 6, 2018. (Tr. 11). 1
1References to the Transcript will be (Tr.___) and refer to the document filed at ECF No. 13. These references are to the page number of the transcript itself, not the ECF page number. In his applications, Plaintiff alleges being disabled due to a stroke, depression, and chronic obstructive pulmonary disease. (Tr. 239). Plaintiff alleges an onset date of April 27, 2018. (Tr. 11). These applications were denied and initially and again upon reconsideration. Id. Thereafter,
Plaintiff requested an administrative hearing, and this hearing request was granted. (Tr. 133-178). Plaintiff’s administrative hearing was held on February 5, 2020, in Fort Smith, Arkansas. (Tr. 30-52). At this hearing, Plaintiff was present and was represented by Laura McKinnon. Id. Plaintiff and Vocational Expert (“VE”) Tonya Owen testified at this hearing. Id. On June 9, 2020, the ALJ entered an unfavorable decision denying Plaintiff’s disability applications. (Tr. 11-23). In this decision, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2023. (Tr. 13, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 27, 2018, his alleged onset date. (Tr. 13, Finding 2). The ALJ found Plaintiff had the following severe impairments: peripheral vascular disease status post stroke, disorder of the back, hypertension, and adjustment
disorder. (Tr. 13, Finding 3). Despite being severe, the ALJ determined those 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. 14, Finding 4). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his Residual Functional Capacity (“RFC”). (Tr. 15-21, Finding 5). First, the ALJ 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 except limited to work where interpersonal contact is incidental; tasks are no more complex than those learned and performed by rote with few variables and little judgement; and supervision required is simple, direct and concrete. Id. The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was unable to perform any of his PRW. (Tr. 21, Finding 6). The ALJ also considered whether
Plaintiff retained the capacity to perform other work existing in significant numbers in the national economy, considering his age, education, work experience, and RFC. (Tr. 22, Finding 10). The VE testified at the administrative hearing regarding this issue. Id. Considering this testimony, the ALJ determined Plaintiff retained the capacity to perform representative occupations such as housekeeping with approximately 380,000 such jobs in the national economy; packing line worker with approximately 207,000 such jobs in the national economy; and meat processing with approximately 63,000 such jobs in the national economy. (Tr. 22). 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 April 27, 2018, through the date of the decision. (Tr. 22, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s decision. On December 23, 2020, the Appeals Council denied this request for review. (Tr. 1-5). On February 26, 2021, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 15-16. 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) (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).
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IN UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION
MARK ISOM PLAINTIFF
vs. Civil No. 5:21-cv-05039
KILOLO KIJAKAZA, DEFENDANT Acting Commissioner, Social Security Administration
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Mark Isom (“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 his application for a Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Timothy L. Brooks referred this case to this Court for the purpose of making a report and recommendation. In accordance with that referral, and after reviewing the arguments in this case, this Court recommends Plaintiff’s case be REVERSED AND REMANDED. 1. Background: Plaintiff protectively filed his application for DIB on November 27, 2018, and for SSI on December 6, 2018. (Tr. 11). 1
1References to the Transcript will be (Tr.___) and refer to the document filed at ECF No. 13. These references are to the page number of the transcript itself, not the ECF page number. In his applications, Plaintiff alleges being disabled due to a stroke, depression, and chronic obstructive pulmonary disease. (Tr. 239). Plaintiff alleges an onset date of April 27, 2018. (Tr. 11). These applications were denied and initially and again upon reconsideration. Id. Thereafter,
Plaintiff requested an administrative hearing, and this hearing request was granted. (Tr. 133-178). Plaintiff’s administrative hearing was held on February 5, 2020, in Fort Smith, Arkansas. (Tr. 30-52). At this hearing, Plaintiff was present and was represented by Laura McKinnon. Id. Plaintiff and Vocational Expert (“VE”) Tonya Owen testified at this hearing. Id. On June 9, 2020, the ALJ entered an unfavorable decision denying Plaintiff’s disability applications. (Tr. 11-23). In this decision, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2023. (Tr. 13, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 27, 2018, his alleged onset date. (Tr. 13, Finding 2). The ALJ found Plaintiff had the following severe impairments: peripheral vascular disease status post stroke, disorder of the back, hypertension, and adjustment
disorder. (Tr. 13, Finding 3). Despite being severe, the ALJ determined those 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. 14, Finding 4). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his Residual Functional Capacity (“RFC”). (Tr. 15-21, Finding 5). First, the ALJ 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 except limited to work where interpersonal contact is incidental; tasks are no more complex than those learned and performed by rote with few variables and little judgement; and supervision required is simple, direct and concrete. Id. The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was unable to perform any of his PRW. (Tr. 21, Finding 6). The ALJ also considered whether
Plaintiff retained the capacity to perform other work existing in significant numbers in the national economy, considering his age, education, work experience, and RFC. (Tr. 22, Finding 10). The VE testified at the administrative hearing regarding this issue. Id. Considering this testimony, the ALJ determined Plaintiff retained the capacity to perform representative occupations such as housekeeping with approximately 380,000 such jobs in the national economy; packing line worker with approximately 207,000 such jobs in the national economy; and meat processing with approximately 63,000 such jobs in the national economy. (Tr. 22). 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 April 27, 2018, through the date of the decision. (Tr. 22, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s decision. On December 23, 2020, the Appeals Council denied this request for review. (Tr. 1-5). On February 26, 2021, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 15-16. 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) (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). 3. Discussion: In his appeal brief, Plaintiff raises four arguments for reversal: (A) the ALJ erred by failing to fully and fairly develop the record; (B) the ALJ erred at Step Two of the determination; (C) the ALJ improperly evaluated his credibility; and (D) the ALJ erred in the RFC finding. ECF No. 15 at 8-20. Because this Court finds the ALJ erred in the RFC determination, the Court will only address this issue for reversal. 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 mere fact a claimant has a long list of medical conditions does not demonstrate that person is disabled; instead, the RFC determination is a function-by-function analysis. See SSR 96-8P, 1996 WL 374184 (July 2, 1996). “The RFC assessment considers only functional limitations and restrictions that result from an individual’s medically determinable impairment or combination of impairments, including the impact of any related symptoms.” Id. 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). The ALJ determined Plaintiff had severe impairments that included peripheral vascular disease status post stroke. (Tr. 13, Finding 3). However, the ALJ’s RFC determination failed to account for this. (Tr. 15, Finding 5). The ALJ did not include an accommodation for this impairment or explain how this impairment impacted the RFC formulation. RFC is the most an individual is capable of doing despite the combined effects of their
severe and non-severe medically determinable impairments. See 20 C.F.R. § 404.1545(a); see also Ford v. Astrue, 518 F.3d 979, 981 (8th Cir .2008). Accordingly, the ALJ's RFC assessment should have included limitations resulting from Plaintiff's peripheral vascular disease status post stroke. Remand is necessary to allow the ALJ to reassess the limitations imposed by this impairment. Thus, because the RFC determination is not supported by substantial evidence in the record, this case must be reversed and remanded. 4. Conclusion: Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits to Plaintiff, is supported by not substantial evidence and recommends that it be REVERSED AND REMANDED.
The Parties have fourteen (14) days from receipt of this Report and Recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The Parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990). ENTERED this 28th day of July 2022. Barry A. Bryant /s/ HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE