Anthony v. Social Security Administration Commissioner

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
BRETT ANTHONY 	PLAINTIFF
vs. 	Civil No. 1:25-cv-01028
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION 	DEFENDANT
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Brett Anthony (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of the Social Security Administration (“SSA”) denying his application for
Disability Insurance Benefits (“DIB”) and a period of disability under Title II of the Act.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey
referred this case to this Court for the purpose of making a report and recommendation. 	In
accordance with that referral, and after reviewing the arguments in this case, this Court
recommends Plaintiff’s case be REVERSED AND REMANDED.
1. 	Background:
Plaintiff protectively filed his disability application on January 8, 2022. (Tr. 35). In this
application, Plaintiff alleges being disabled due to congestive heart failure and a broken right leg.
(Tr. 180). Plaintiff alleges an onset date of September 14, 2021. (Tr. 35). This application was
denied initially and again upon reconsideration. Id.
Plaintiff requested an administrative hearing on his denied application, and this hearing
request was granted. (Tr. 92-151). The ALJ held a hearing on August 16, 2023. (Tr. 48-61). At
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this hearing, Plaintiff was present and represented by Mickey Stevens. Id. Plaintiff and Vocational
Expert (“VE”), Donald Rue testified at the hearing. Id.
On October 27, 2023, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s application. 	(Tr. 35-43). 	The ALJ determined Plaintiff met the
insured status requirements of the Act through December 31, 2025. (Tr. 37, Finding 1). The ALJ
also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since
September 14, 2021, his alleged onset date. (Tr. 37, Finding 2).
The ALJ then determined Plaintiff had the following severe impairments: cardiomyopathy,
diabetes mellitus, obesity and residuals from right leg fracture. (Tr. 37, Finding 3). Despite being
severe, the ALJ also determined Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 38, Finding 4).
In the decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his
Residual Functional Capacity (“RFC”). 	(Tr. 38-41, Finding 5). 	Specifically, the ALJ found
Plaintiff retained the RFC to perform the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity light work, specifically lift and carry
20 pounds occasionally; 10 pounds frequently, sitting for 6 hours of an 8 hour work
day as defined in 20 CFR 404.1567(b).
Id.
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 41, Finding 6). The
ALJ determined Plaintiff was not capable of performing any PRW. Id. However, the ALJ found
there were jobs in significant numbers in the national economy that Plaintiff could perform. (Tr.
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41, Finding 10). 	Based upon this finding, the ALJ determined Plaintiff had not been disabled
under the Act from September 14, 2021, through the date of the decision. (Tr. 43, Finding 11).
Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable disability
determination. (Tr. 25-31). On September 16, 2024, the Appeals Council declined to review the
ALJ’s disability determination. (Tr. 19-24). On April 7, 2025, Plaintiff filed the present appeal.
ECF No. 1. 	Both Parties have filed appeal briefs. ECF Nos. 9,11,12. This case is now ready for
decision.
2. 	Applicable Law:
In reviewing this case, the Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2010); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as there is substantial evidence in the record that supports 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.
See Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 	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 decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2000).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his or her disability by establishing a physical or mental disability that lasted at least
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one year and that prevents him or her from engaging in any substantial gainful activity. See Cox
v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The
Act defines a “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), 1382(3)(c). 	A plaintiff
must show that his or her disability, not simply his or her impairment, has lasted for at least twelve
consecutive months. See 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)
whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts
to the Commissioner to prove that there are other jobs in the national economy that the claimant
can perform. 	See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). 	The fact finder only
considers the plaintiff’s age, education, and work experience in light of his or her RFC if the final
stage of this analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3. 	Discussion:
In his appeal brief, Plaintiff raises the following two issues for reversal: (A) the ALJ erred
in failing to assess the medical necessity of Plaintiff’s use of a cane and (B) the ALJ erred in
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considering the supportability and consistency factors in determining the persuasiveness of
medical opinions and the findings of the state agency medical consultants. ECF No. 9. Because
the Court finds the ALJ did not properly consider Plaintiff’s medical sources in accordance with
the requirements of 20 C.F.R. § 404.1520c(c)(1) and 20 C.F.R. § 416.920c(c)(1), the Court finds
this case must be reversed and remanded.
On January 18, 2017, the SSA adopted new rules which, for claims filed after March 27,
2017, modify the “treating physician” rule. Because this claim was filed after this date, this new
rule applies here. 	Under the new rule, the ALJ is required to consider factors such as the
supportability of the medical source’s opinion, the consistency of that opinion, the relationship of
the claimant to the medical source, and specialization of the medical source. 	See 20 C.F.R. §§
404.1520c(c) and 416.920c(c). 	Under these new regulations, the SSA “will consider” these
factors. See id. The Eighth Circuit has also specifically held that the ALJ must explain how the
factors of supportability and consistency are considered. 	See, e.g., Bonnett v. Kijakazi, 859 F.
App’x. 19 (2021) (unpublished).
Plaintiff claims the ALJ erred in assessing the opinions of Dr. Dorothy Leong and Dr. Brett
Alberty. In his decision, the ALJ’s analysis of their opinions was limited to as follows: “These
opinions are persuasive as they are consistent with the objective evidence of record the above
limitations.” (Tr. 41). Clearly the ALJ did not consider the supportability and consistency of Dr.
Leong’s and Dr. Alberty’s opinions as required by 20 C.F.R. §§ 404.1520c(c) and 416.920(c) and
Bonnett v. Kijakazi. Because the ALJ failed to address supportability and consistency in relation
to these opinions, the Court is unable to say the ALJ's ultimate determination is supported by
substantial evidence. Therefore, this case should be reversed and remanded.
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4. 	Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying
benefits to Plaintiff, is not supported by substantial evidence and recommends it be REVERSED
AND REMANDED.
The Parties have fourteen (14) days from receipt of this Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The Parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
ENTERED this 8 th day of January 2026.
/s/ Spencer G. Singleton
HONORABLE SPENCER G. SINGLETON
UNITED STATES MAGISTRATE JUDGE
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