United States District Court, E.D. Arkansas
Tango Smith Jr. Plaintiff
Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant.
JEROME T. KEARNEY, Magistrate Judge.
The following recommended disposition was prepared for U.S. District Judge D.P. Marshall. A party to this dispute may file written objections to this recommendation. An objection must be specific and state the factual and/or legal basis for the objection. An objection to a factual finding must identify the finding and the evidence supporting the objection. Objections must be filed with the clerk of the court no later than 14 days from the date of this recommendation. The objecting party must serve the opposing party with a copy of an objection. Failing to object within 14 days waives the right to appeal questions of fact. If no objections are filed, Judge Marshall may adopt the recommended disposition without independently reviewing all of the record evidence.
Reasoning for Recommended Disposition
Tango Smith Jr. seeks judicial review of the denial of his application for disability benefits. Smith last worked as a cashier for a gas station convenience store. He stopped working in April 2010. His reasons for not working vary.
This case considers Smith fourth application. The first application was approved; Smith received disability benefits from 1994 to 2001. The second application was denied on November 27, 2002; the third was denied on September 10, 2010. The denial of the third application fore-closed eligibility for early benefits,  so this case considers whether Smith was disabled beginning September 11, 2010. Smith bases disability on the human immunodeficiency virus (HIV), peripheral artery disease, arthritis, and sleep apnea.
The Commissioner's decision. After considering the third application, the ALJ determined Smith has severe impairments - degenerative disc disease, history of right ankle fracture, HIV-positive, history of sleep apnea, and status-post ascending aortic repair/femoral bypass - but he can do some sedentary work. Because a vocational expert identified available sedentary work,  the ALJ determined Smith is not disabled and denied the application.
After the Appeals Council denied review,  the ALJ's decision became the Commissioner's final decision for the purpose of judicial review. Smith filed this case to challenge the decision. In reviewing the decision, the court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error. This recommendation explains why substantial evidence supports the decision and why the ALJ made no legal error.
Smith's allegations. Smith challenges the determination that he can do some sedentary work; he claims fatigue and drowsiness prevent him from working and necessitate extra work breaks. He contends the ALJ failed to properly evaluate his credibility and characterizes the credibility evaluation as meaningless boilerplate. He complains about the ALJ's reliance on agency medical experts because their opinions predate his heart surgery. For these reasons, he maintains substantial evidence does not support the ALJ's decision.
Applicable legal principles. For substantial evidence to support the decision, a reasonable mind must accept the evidence as adequate to show Smith can do some sedentary work. Sedentary work "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." Sedentary work "represents a significantly restricted range of work. Individuals who are limited to no more than sedentary work by their medical impairments have very serious functional limitations."
The ALJ placed several limitations on sedentary work:
(1) occasional climbing, balancing, stooping, kneeling, climbing, crouching, and crawling;
(2) no concentrated exposure to air pollutants; and
(3) no unprotected heights, dangerous machinery/equipment, or ...