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Swink v. Saul

United States Court of Appeals, Eighth Circuit

July 29, 2019

Jonathon A. Swink Plaintiff- Appellant
Andrew M. Saul, [1] Commissioner, Social Security Administration Defendant-Appellee

          Submitted: April 19, 2019

          Appeal from United States District Court for the Western District of Arkansas - Ft. Smith

          Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.


         Jonathon Swink appeals the district court's[2] judgment upholding the Social Security Administration ("SSA") Commissioner's decision to deny Swink disability insurance benefits. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

         I. Background

         Swink is a 41-year-old man from Charleston, Arkansas. Since at least 2012, various medical professionals have treated him for a seizure disorder, anxiety, and back pain. In 2013, Swink underwent back surgery to remedy a herniated disc in his lumbar spine. He has not worked since the surgery.

         On February 21, 2014, Swink filed an application for disability insurance benefits under the Social Security Act (the "Act"). See 42 U.S.C. § 423. He alleged that his disability began on October 28, 2013. After the SSA denied his application and a subsequent request to reconsider, Swink requested a hearing on the matter before an administrative law judge ("ALJ"). Swink's request was granted, and a hearing was ultimately held on March 21, 2016.

         At the hearing, the ALJ heard testimony from Swink and a vocational expert. Swink testified that his back pain keeps him from working, but he has some good days on which he is able to do chores around his house and on rental properties he owns. He said that he has not experienced a generalized seizure in approximately three years due to medication. He explained that he frequently has "spells," which he characterizes as small seizures where his eyes "float" and he "zone[s] out" and slurs his speech or stutters. He stated that his anxiety is heightened because of his medical conditions. The vocational expert testified that there are over 1.2 million jobs in the national economy for a hypothetical person with Swink's limitations-a person who must avoid all hazards, can only perform light, unskilled work, and can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl.

         The ALJ allowed Swink to enter several medical records into evidence. The records included reports from Swink's neurologists regarding his seizure disorder, reports from a sports medicine clinic and Mercy Hospital Fort Smith regarding his back issues, and reports from two nurse practitioners regarding his post-surgery back and general-health treatment. The records showed that during the relevant period, Swink's generalized seizures and anxiety were stable with medications. They also showed that his back condition had improved with surgery and he was clear to gradually increase his activity. According to the records, Swink had normal reflexes, mental status, muscle bulk, strength, and tone. His gait was normal. He had "normal movement of all extremities," though his lower back was tender.

         The ALJ also considered several medical opinions. These included a physical capacity assessment from Swink's most recent health-care provider, a nurse practitioner named Jonathan Broniste. Disability-determination assessments the SSA had prepared through medical and psychological consultants were also included. Broniste opined that Swink had several physical limitations that would affect his ability to work-namely, Swink could only lift and carry up to 50 pounds occasionally and 10 pounds frequently; he could only sit for two hours total in an eight-hour workday and for fifteen minutes at a time; he could only be on his feet for a total of five hours in an eight-hour workday; he would need to avoid exposure to unprotected heights, moving machinery, and marked temperature changes; and he could only occasionally bend, squat, crawl, climb, stoop, crouch, or kneel. Broniste also said that Swink would sometimes need to take unscheduled breaks during a work shift and that Swink would likely miss more than four work days per month. The consultants who prepared the disability-determination assessments concluded that Swink could perform light work with occasional climbing, stooping, kneeling, crouching, balancing, and crawling. They also said that Swink should avoid exposure to hazards and that any limitations arising from his mental impairments were no more than "mild."

         The ALJ took the case under advisement, allowing Swink to supplement the record with materials he received from a recent visit with his neurologist. The supplemental materials confirmed that Swink's generalized seizures and anxiety disorder were stable with medication and that he had a normal gait. They also revealed that Swink's neurologist did not believe Swink's spells were small seizures. According to the neurologist, the spells were possibly the effect of an undiagnosed attention deficit disorder ("ADD"). The neurologist recommended testing for ADD and increased the dose of Swink's seizure medication, apparently at Swink's request and out of caution.

         The ALJ concluded that Swink was not under a disability as that term is defined in the Act and denied his application. Specifically, the ALJ found that Swink had "the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he [could only] occasionally stoop, kneel, climb ramps and stairs, balance, crouch, and crawl." The ALJ further found that Swink needed to "avoid all exposure to hazards" and that he was "limited to unskilled work."

         Swink requested that the SSA Appeals Council review the ALJ's decision. The SSA Appeals Council denied the request, rendering the ALJ's decision the final decision of the Social Security Commissioner. Swink appealed to ...

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