United States District Court, W.D. Arkansas, Fort Smith Division
NELLEY L. MOSS PLAINTIFF
ANDREW M. SAUL, Commissioner, Social Security Administration DEFENDANT
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
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).
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
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).
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.
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.
requested a review of the hearing decision by the Appeals
Council, which denied the request on June 26, 2018.
(Id., pp. 5-9).
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.
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.
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.
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),
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).
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.
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).
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 8th 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