Moss v. Saul

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Nelley L. Moss, brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his claim for a period of disability and disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under the provisions of Titles II and XVI of the Social Security Act (the “Act”). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. 42 U.S.C. § 405(g).

         I. Procedural Background

         Plaintiff protectively filed an application for DIB on May 19, 2016, alleging disability since March 15, 2016, due to mental problems, heart problems, and high blood pressure. (ECF No. 8, pp. 15, 65, 195-202). For DIB purposes, Plaintiff retained insured status through December 31, 2020. (Id., p. 247). Plaintiff also protectively filed an application for SSI on July 14, 2016. (Id., p. 15, 203-08). His applications were denied initially on September 15, 2016, and upon reconsideration on February 22, 2017. (Id., pp. 15, 65-77, 80-96, 97-113). Plaintiff requested an administrative hearing (Id., pp. 123-24), and the hearing was held on December 13, 2017, before the Hon. Toni Shropshire, Administrative Law Judge (“ALJ”). (Id., pp. 34-63). Plaintiff was present and represented by counsel, Ashley Loy. (Id., pp. 15, 35). A vocational expert (“VE”), Stefanie A. Ford, was also present and testified at the administrative hearing. (Id.).

         Plaintiff was 42 years old at the time of the hearing. (Id., p. 41). He has a limited education - completing only the seventh grade (having taken it twice) and attending special education classes. (Id., pp. 38, 362). He does not have a GED. (Id.). His last job was at the Walmart deli in 2014-2015, a job he was terminated from because of tardiness and absenteeism related to his “nerves get so bad.” (Id., p. 43).

         By a written decision dated April 4, 2018, the ALJ found Plaintiff had the following severe impairments: asthma, degenerative joint disease, status-post ankle fracture, anxiety, and depression. (Id., p. 17). The ALJ determined Plaintiffs impairments did not meet or equal the level of severity of any impairment in the Listing of Impairments. (Id., pp. 18-19). The ALJ then found Plaintiff had the residual functional capacity (“RFC”) to perform light work, except:

“this individual can frequently climb stairs and ladders, balance, stoop, kneel, crouch, and crawl. He can occasionally reach overhead with his right arm and must avoid all pulmonary irritants, extreme heat in the workplace, and work around unprotected heights and moving mechanical parts. Non-exertionally, this individual is limited to simple, routine and repetitive tasks with interpersonal contact that is incidental to the work performed, wherein he can make simple work-related decisions, concentrate, persist and maintain pace with normal breaks, with supervision that is simple, direct, and concrete.” (Id., pp. 20-26).

         With the help of the VE, the ALJ determined Plaintiff could not perform his past relevant work (“PRW”) (Id., pp. 26-27), but he could perform the requirements of representative occupations such as a price tag ticketer and routing clerk. (Id., p. 28). The ALJ concluded that Plaintiff was not disabled. (Id.).

         Plaintiff requested a review of the hearing decision by the Appeals Council, which denied the request on June 26, 2018. (Id., pp. 5-9).

         Plaintiff filed this action on August 27, 2018. (ECF No. 1). Both parties have filed briefs (ECF Nos. 13, 15), and the case is before the undersigned for report and recommendation.

         II. Applicable Law

         This Court's role is to determine whether substantial evidence supports the Commissioner's findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial evidence is less than a preponderance, but it is enough that a reasonable mind would find it adequate to support the Commissioner's decision. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). The Court must affirm the ALJ's decision if the record contains substantial evidence to support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). As long as there is substantial evidence in the record to support 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). In other words, 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 Court must affirm the ALJ's decision. Id.

         A claimant for Social Security disability benefits has the burden of proving his disability by establishing a physical or mental disability that has lasted at least one year and that prevents him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines “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), 1382c(a)(3)(D). A claimant must show that his disability, not simply his impairment, has lasted for at least twelve consecutive months.

         The Commissioner's regulations require him to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the claimant is able to perform other work in the national economy given his age, education, and experience. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Only if she reaches the final stage does the fact finder consider the Plaintiff's age, education, and work experience in light of his or her residual functional capacity. McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982) (en banc) (abrogated on other grounds); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

         III. Discussion

         On appeal, Plaintiff argues: (1) the ALJ failed to identify Plaintiff's bipolar disorder and chronic post-traumatic stress disorder (“PTSD”) as severe impairments at step two; (2) the ALJ failed to give adequate reasons for rejecting the opinion evidence; (3) the ALJ failed to fully and fairly develop the record; and, (4) the ALJ's RFC assessment is not supported by substantial evidence. (ECF No. 13, pp. 8-17).

         The undersigned is troubled by the ALJ's treatment of the opinion evidence and her failure to fully and fairly develop the record. For the reasons discussed below, it is recommended that the Commissioner's decision to deny benefits be reversed and the case remanded for further development of the record and reconsideration of Plaintiff's mental RFC.

         A. Treatment of the Opinion Evidence

          Plaintiff has a long history of suffering from mental health problems. At the time of his applications, the field office worker observed that Plaintiff “is emotional and cried during the entire interview, ” and “I would say the [Plaintiff] has a severe social disorder.” (ECF No. 8, p. 248).

         On September 9, 2016, Plaintiff reported to the State agency consultative examiner, Samuel B. Hester, Ph.D., that he had been in mental health treatment most of his life since early childhood. (Id. 8, pp. 362-63). He was a slow learner and in special education classes, saw a school counselor, and had speech therapy before dropping out of school in the 8^th grade. (Id.). At the time of the consultative exam, he reported insomnia, extreme anxiety, unprovoked tearfulness, and auditory and visual hallucinations. (Id.). While he noted a family history of heart disease, it was felt his chest pain was ...