United States District Court, E.D. Arkansas, Little Rock Division
T. KEARNEY UNITED STATES MAGISTRATE JUDGE
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge James Moody. You may file written objections
to all or part of this Recommendation. If you do so, those
objections must: (1) specifically explain the factual and/or
legal basis for your objection; and (2) be received by the
Clerk of this Court within fourteen (14) days of this
Recommendation. By not objecting, you may waive the right to
appeal questions of fact.
FOR RECOMMENDED DISPOSITION
Wilson applied for social security disability benefits with
an amended alleged onset date of August 31, 2014. (R. at 89).
After a hearing, the administrative law judge (ALJ) denied
her application. (R. at 34). The Appeals Council denied her
request for review. (R. at 1). The ALJ's decision now
stands as the Commissioner's final decision, and Wilson
has requested judicial review.
reasons stated below, the undersigned magistrate judge
recommends reversing and remanding the Commissioner's
The Commissioner's Decision
found that Wilson had the severe impairments of degenerative
disk disease, fibromyalgia, carpal tunnel syndrome, mild
small airway disease, sleep apnea, coronary artery spasm,
plantar fasciitis, depression, and obesity. (R. at 14). The
ALJ then found that Wilson's impairments left her with
the residual functional capacity (RFC) to perform light work
except that she could only occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; frequently
handle and finger; and perform only unskilled work. (R. at
18). The RFC precluded Wilson's past relevant work. (R.
at 32). However, a vocational expert (VE) testified that a
person with Wilson's age, education, work experience, and
RFC could perform jobs such as cleaner-housekeeping or power
screwdriver operator. (R. at 33-34). The ALJ therefore held
that Wilson was not disabled. (R. at 34).
Court is to affirm the ALJ's decision if it is not based
on legal error and is supported by “substantial
evidence in the record as a whole, ” which is more than
a scintilla but less than a preponderance. Long v.
Chater, 108 F.3d 185, 187 (8th Cir. 1997). The Court
considers evidence supporting and evidence detracting from
the Commissioner's decision, but it will not reverse
simply because substantial evidence could support a different
outcome. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th
argues that the ALJ failed to account for her moderate
limitations in concentration, persistence, or pace in the RFC
despite finding such limitations at step three and that the
RFC is not supported by substantial evidence on the record as
a whole. As the undersigned finds that the ALJ failed to
account Wilson's moderate limitations in concentration,
persistence, or pace, it is not necessary to reach her other
found at step three of the evaluative process that Wilson had
moderate limitations in the domain of concentration,
persistence, or pace. (R. at 17). Wilson argues that the
RFC's only mental limitation, which restricts her to
unskilled work, is insufficient to account for moderate
limitations in this domain.
Commissioner argues that the Eighth Circuit has held that
moderate difficulties in maintaining concentration,
persistence, or pace are consistent with being able to
understand, remember, and carry out simple instructions.
Chismarich v. Berryhill, 888 F.3d 978, 980 (8th Cir.
2018). This is correct, but it is inapposite. The ALJ in this
case only limited Wilson to unskilled work with no other
mental limitations. (R. at 18). The ALJ did not limit Wilson
to understanding, remembering, and carrying out simple
instructions. This case falls in line with the Eighth
Circuit's older decision in Newton v. Chater,
where the court held that a limitation to simple work did not
sufficiently account for moderate limitations in
concentration, persistence, or pace. 92 F.3d 688, 695 (8th
rest of the Commissioner's argument on this point is that
the evidence on the record as a whole supports a limitation
to unskilled work. However, that is not the problem with the
ALJ's decision. The ALJ's decision is internally
inconsistent, and that is, in itself, error worthy of remand.
If the ALJ had not found moderate limitations in
concentration, persistence, or pace, the Commissioner's
argument that the evidence supports the RFC would be
relevant. However, Wilson's argument is that the RFC ...