Sharpe v. Social Security Administration Commissioner

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
KINLEE SHARPE 	PLAINTIFF
vs. 	Civil No. 5:24-cv-05028
COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION 	DEFENDANT
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Kinlee Sharpe (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision
of the Commissioner of the Social Security Administration (“SSA”) denying her application for
a Disability Insurance Benefits (“DIB”) under Title II of the Act.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable
Timothy L. Brooks 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 her disability application on February 3, 2021. (Tr. 18). In her
application, Plaintiff alleges being disabled due to a crushed ankle, brain damage, and bulging
disc in her lower spine. (Tr. 206). 	Plaintiff alleges an onset date of October 31, 2019. (Tr. 18).
Her application was denied initially and again upon reconsideration. Id.
Plaintiff requested an administrative hearing on her denied application, and this hearing
request was granted. 	(Tr. 106-157). 	This hearing was held on October 27, 2022. 	(Tr. 40-68).
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At this hearing, Plaintiff was present and was represented by counsel. 	Id. 	Plaintiff and
Vocational Expert (“VE”) Teri Hewitt testified at this hearing. 	Id. 	At this hearing, Plaintiff
testified she was forty-six (46) years old, graduated high school and had completed one semester
of college. (Tr. 42, 61).
On January 20, 2023, after the administrative hearing, the ALJ entered an unfavorable
decision denying Plaintiff’s disability application. 	(Tr. 18-33). 	The ALJ determined Plaintiff
met the insured status requirements of the Act through December 31, 2024. (Tr. 20, Finding 1).
The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”)
since October 31, 2019, her alleged onset date. (Tr. 21, Finding 2).
The ALJ then determined Plaintiff had the following severe impairments: moderate-
severe osteoarthritis of right ankle with a history of fracture with surgery, femoral acetabular
impingement of the right hip, degenerative joint disease of the left knee and right wrist,
degenerative disc disease of the lumbar spine, mild neurocognitive disorder and migraines. (Tr.
21, Finding 3). The ALJ also determined Plaintiff did not have an impairment or combination of
impairments that meet or medically equal the requirements of any of the Listings of Impairments
in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 21, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her
Residual Functional Capacity (“RFC”). 	(Tr. 23-31, Finding 5). 	First, the ALJ evaluated
Plaintiff’s subjective complaints and found they were not entirely credible. Id. Second, the ALJ
determined Plaintiff had the residual functional capacity (RFC) to perform sedentary exertional
work, except she could not use right foot controls, or climb ladders, ropes, scaffolds or
unprotected heights; could occasionally climb ramps and stairs, stoop, kneel, crouch and crawl;
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and frequently handle and finger with her right hand; limited to moderate office level noise and
could not be exposed to bright sunlight; could understand, remember and carry out simple,
routine, repetitive tasks; could respond to usual work situations and routine work changes; and
could not have contact with the general public, except for incidental contact. Id.
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was
unable to perform any of her PRW. 	(Tr. 31, Finding 6). 	The ALJ then considered whether
Plaintiff retained the capacity to perform other work existing in significant numbers in the
national economy. (Tr. 32, Finding 10). The VE testified at the administrative hearing regarding
this issue. Id. Based upon that testimony, the ALJ determined Plaintiff retained the capacity to
perform work as a table worker with approximately 80,000 such jobs in the nation, circuit board
assembler with approximately 50,000 such jobs in the nation, and final assembler with
approximately 50,000 such jobs in the nation. 	Id. 	Because Plaintiff retained the capacity to
perform this other work, the ALJ determined Plaintiff had not been under a disability, as defined
in the Act, at any time from October 31, 2019, through the date of the decision. (Tr. 33, Finding
11).
Plaintiff sought review with the Appeals Council. (Tr. 1-6). On December 5, 2023, the
Appeals Council denied this request for review. 	Id. 	On January 30, 2024, Plaintiff filed a
Complaint in this case. 	ECF No. 1. 	Both Parties have filed appeal briefs. 	ECF Nos. 16, 18.
This matter is now ripe for consideration.
2. 	Applicable Law:
In reviewing this case, this 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)
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(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
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
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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 her appeal brief, Plaintiff claims the ALJ’s decision is not supported by substantial
evidence in the record. 	ECF No. 16. 	Specifically, Plaintiff raises three claims for reversal: (1)
the ALJ committed error in failing to find her migraine headaches met or medically equaled the
criteria for Listing 11.02, (2) the ALJ erred by failing to properly evaluate her subjective
complaints, and (3) the ALJ erred in the evaluation of treating medical source opinions. 	Id.
Upon review, the Court finds the ALJ’s evaluation of the Listings (specifically Listing 11.02) is
not supported by substantial evidence in the record; thus, the Court will only address this issue.
Plaintiff argues the ALJ did not properly evaluate her migraine headaches under the
listings and according to Social Security Ruling (SSR) 19-4p. 	There is no listing for migraine
headaches, however, SSR 19-4p identifies Listing 11.02 (epilepsy) as the most closely analogous
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listed impairment for a primary headache disorder. Therefore, the analysis is whether Plaintiff’s
condition medically equals section 11.02.
The ALJ must determine whether Plaintiff has a severe impairment that significantly
limits the physical or mental ability to perform basic work activities. A medically determinable
impairment or combination of impairments is severe if it significantly limits an individual’s
physical or mental ability to do basic work activities. 	See 20 C.F.R. §§ 404.1521 and 416.921.
The ALJ found Plaintiff did suffer from impairments considered to be severe within the meaning
of the Social Security regulations. 	(Tr. 21, Finding 3). 	The ALJ also determined Plaintiff did
not have an impairment or combination of impairments that meet or medically equal the
requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations
No. 4 (“Listings”). (Tr. 21, Finding 4).
In this mater, the ALJ did find Plaintiff suffered from a mild neurocognitive disorder and
migraines that were considered to be severe, and the medical record supports this finding.
However, in her assessment of Plaintiff’s impairments and in her determination of whether
Plaintiff’s impairments meet the Listings, the ALJ did not explain or even mention Listing 11.02.
There is no analysis of this Listing and no further explanation as to why Plaintiff’s impairments
do not meet that Listing. 	Based upon the record before the Court that determination is not
supported by substantial evidence.
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.
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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 15th day of January 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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