United States District Court, E.D. Arkansas, Western Division
JAMES R. PICKENS PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT
following Recommended Disposition (Recommendation) has been
sent to Judge J. Leon Holmes. The parties may file written
objections to all or part of this Recommendation if they
disagree with its findings or conclusion. Objections should
be specific and should identify the factual or legal basis
for the objection. To be considered, objections must be filed
with the Clerk of Court within 14 days of this
Recommendation. If parties do not object, they may waive the
right to appeal questions of fact.
Pickens applied for social security disability benefits with
an alleged onset date of December 27, 2013. (R. at 187).
After a hearing, the administrative law judge (ALJ) denied
Mr. Pickens's applications. (R. at 33). Subsequently, the
Appeals Council denied his request for review. (R. at 1). The
ALJ's decision, therefore, now stands as the
Commissioner's final decision. Mr. Pickens filed this
appeal seeking judicial review.
The Commissioner's Decision:
found that Mr. Pickens had the following severe impairments:
hypertension, degenerative disk disease at ¶ 4-L5, gout,
chronic obstructive pulmonary disorder (COPD),
osteoarthritis, mild-to-moderate bilateral sensorineural
hearing loss, anxiety, depression, and non-obstructive
cardiomyopathy. (R. at 18). The ALJ concluded that Mr.
Pickens had the residual functional capacity (RFC) to perform
light work except that he was limited to work with simple
tasks and simple instructions; and he was further limited to
incidental contact with the public. (R. at 20). This RFC
precluded Mr. Pickens's past relevant work. (R. at
31-32). The ALJ took testimony from a vocational expert (VE),
who testified that a person with Mr. Pickens's age,
education, work experience, and RFC would be able to perform
other jobs in the economy, such as router, garment sorter, or
nut and bolt assembler. (R. at 32-33). The ALJ held,
therefore, that Mr. Pickens was not disabled within the
meaning of the Social Security Act. (R. at 33).
Pickens argues that the ALJ failed to fully and fairly
develop the record; failed to properly evaluate his
subjective complaints; and erred in his RFC determination.
Because the ALJ erred in making his RFC determination, it is
not necessary to reach Mr. Pickens's other points on
appeal, the Court must review the Commissioner's decision
for legal error and assure that the decision is supported by
substantial evidence on the whole record. Brown v.
Colvin, 825 F.3d 936, 939 (8th Cir. 2016) (citing
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir.
2010)). Stated another way, the decision must rest on enough
evidence that “a reasonable mind would find it adequate
to support [the] conclusion.” Halverson, 600
F.3d at 929. The Court will not reverse the decision,
however, solely because there is evidence to support a
conclusion different from that reached by the Commissioner.
Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir.
claimant's RFC must fully account for all of his or her
impairments, whether severe or non-severe. Ford v.
Astrue, 518 F.3d 979, 981 (8th Cir. 2008). By
definition, a severe impairment is one that significantly
limits a claimant's ability to engage in basic work
activities. Martise v. Astrue, 641 F.3d 909, 923
(8th Cir. 2011).
Pickens argues that the ALJ erred in determining his RFC by
failing to include limitations caused by his gout, hearing
loss, and COPD. The Commissioner responds to this point by
arguing that the record does not support such limitations.
Commissioner's argument is not well taken because the ALJ
found all three of these impairments to be severe. (R. at
18). The ALJ cannot plausibly find at step two that an
impairment significantly limits a claimant and also disregard
that impairment in determining the claimant's RFC. Had
the ALJ not found the impairments severe, the
Commissioner's argument would bear consideration. Because
the ALJ explicitly found that gout, hearing loss, and COPD
were severe impairments, he was obligated to account for
limitations arising from those impairments in determining
limited Mr. Pickens to light work with simple tasks, simple
instructions, and incidental contact with the public. (R. at
20). As Mr. Pickens correctly notes, there is no difference
in the standing/walking requirements between light, medium,
and heavy work, which all require six-to-eight hours of
standing/walking in a typical eight-hour workday. Titles
II & XVI: Determining Capability to Do Other Work-the
Med.-Vocational Rules of Appendix 2, SSR 83-10 (S.S.A.
1983). The ALJ implicitly held that Mr. Pickens had no limits
on his ability to stand or walk, a finding that is at odds
with the finding that gout was a severe impairment. Symptoms
of gout include severe foot pain. (R. at 55-59, 445, 479,
also found that Mr. Pickens's hearing loss was a severe
impairment; yet the RFC makes no allowance for hearing loss.
The Commissioner has not explained how limiting Mr. Pickens
to light work at simple tasks with incidental contact with
the public sufficiently accounts limits attributable to
the ALJ failed to account for Mr. Pickens's severe COPD.
Mr. Pickens argues that, because of his COPD, the ALJ should
have included environmental limitations (restricting his
exposure to pulmonary irritants) as a part of the RFC. The
Commissioner does not argue that a limitation to light work
accounts for COPD, but instead, argues that the evidence does
not support including limitations related to COPD in the RFC.
Again, this assertion is at odds with the ALJ's finding