Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. Colvin

United States District Court, W.D. Arkansas, Fort Smith Division

August 11, 2014

CHARLES BROWN, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Commissioner Social Security Administration, Defendant.

MEMORANDUM OPINION

JAMES R. MARSCHEWSKI, Magistrate Judge.

Plaintiff, Charles Brown, brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of Social Security Administration (Commissioner) denying his claim for disability insurance benefits ("DIB") and supplemental security income under Titles II and XVI of the Social Security Act (hereinafter "the Act"), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial review, the court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See 42 U.S.C. § 405(g).

I. Procedural Background

There are two sets of applications for DIB and SSI in the record. The first set is dated November 15, 2006. The second is dated August 12, 2008. (Tr. 9.) In both sets of applications, Plaintiff alleged an onset date of June 10, 2005. (Tr. 283, 288, 291, 294.) A review of the several function and disability reports in the record, some of which are undated, reveals that Plaintiff alleged the following impairments in one or more of them: arthritis, Hepatitis C, left shoulder issues, asthma, vison issues, nervous disorder, social anxiety and COPD. (Tr. 382, 423, 435.) Plaintiff's applications were denied initially and on reconsideration. Plaintiff requested an administrative hearing, which was scheduled for November 19, 2009 in front of Administrative Law Judge (ALJ") Larry D. Sheperd. (Tr. 159-163.) Plaintiff missed his hearing because he was incarcerated in Crawford County Jail. (Tr. 196-97.) However, Plaintiff's attorney, Fred Caddell, was present. (Tr. 105.) A rescheduled hearing was requested. (Tr.) ALJ Sheperd found that incarceration was not a good reason for failing to appear pursuant to 20 CF.R.404.957(b)(2) and dismissed Plaintiff's request for a hearing on December 15, 2009. (Tr. 105.)

Plaintiff appealed the dismissal to the AC on January 29, 2010. (Tr. 190.) On June 23, 2010, the AC noted that incarceration is not a basis for a hearing forfeiture, and the ALJ should have made arrangements for a hearing at the place of confinement or rescheduled the hearing. The AC further noted that internal policy (HALLEX I-2-4-25 D) prohibited dismissal when claimant's representative appeared at the hearing, as had happened in this case. (Tr. 107.) The AC remanded for claimant to receive another hearing opportunity. (Tr. 108.) The AC noted that Plaintiff had filed a subsequent claim on January 28, 2010, found that this claim was now duplicate because of the AC's remand, and ordered that the ALJ "associate the claim files and issue a new decision on the associated claims." (Tr. 108.)

On October 6, 2010, a hearing was held in front of ALJ Sheperd. Plaintiff was present to testify and was represented by counsel. The ALJ also heard testimony from Vocational Expert ("VE") Dale Thomas. (Tr. 29.)

At the time of this first administrative hearing, Plaintiff was 49 years old, and possessed a GED. (Tr. 34, 35.) Plaintiff had past relevant work experience ("PRW") as a furniture upholsterer. (Tr. 52, 118-19.)

On November 23, 2010, the ALJ concluded that Plaintiff suffered from the following severe impairments: chronic obstructive pulmonary disease ("COPD"), osteoarthritis, and asthma. (Tr. 114.) The ALJ found that Plaintiff maintained the residual functional capacity to perform light work with the following limitations:

The claimant 20 pounds occasionally and 10 pounds frequently. The claimant can sit for about six hours during an eight-hour workday and can stand and walk for about six hours during an eight-hour workday. The claimant can occasionally climb, balance, stoop, kneel, crouch and crawl and can occasionally reach overhead with his left upper extremity. The claimant must avoid concentrated exposure to extreme temperatures, cleaning chemicals, dust, fumes, gases, odors and poor ventilation and must avoid concentrated exposure to hazards, such as unprotected heights and heavy machinery. The claimant cannot drive.

(Tr. 115-16.) With the assistance of the VE, the ALJ determined that the Plaintiff could perform his PRW as a furniture upholsterer. (Tr. 119.)

On February 5, 2013, the Appeals Council remanded the case back to the ALJ for the second time. The AC found that the ALJ erred in assigning "significant weight" to the opinion of Dr. Rebecca Floyd, because the examination had been performed by Dr. Floyd's nurse practitioner rather than Dr. Floyd. (Tr. 127.) On remand, the ALJ was directed to "give further consideration to the treating and nontreating source opinions, " and to "give further consideration to claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitation." (Tr. 128.) The ALJ was further directed to obtain additional evidence from a VE if the expanded record warranted the additional information, and to resolve any conflicts between the evidence provided and the DOT. (Tr. 128.)

On April 2, 2013, a hearing was held in front of ALJ Bill Jones. Plaintiff was present to testify and was represented by counsel. The ALJ also heard testimony from Vocational Expert ("VE") Sarah Moore, and Plaintiff's wife Rita Faye Brown. (Tr. 58.)

At the time of this second administrative hearing, Plaintiff was 52 years old, and possessed a GED. (Tr. 34, 35.)Plaintiff had past relevant work experience ("PRW") as a metal building assembler. (Tr. 21.)

On April 18, 2013, the ALJ concluded that Plaintiff suffered from the following severe impairments: chronic obstructive pulmonary disease ("COPD"), Hepatitis C, and decreased vision in left eye. (Tr. 12.) The ALJ found that Plaintiff maintained the residual functional capacity to perform light work with the following limitations: "claimant can only occasionally climb, balance, stoop. kneel, crouch, and crawl; the claimant must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation; the claimant ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.