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Khounvisay v. Colvin

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

June 15, 2015

KHAMBAY KHOUNVISAY, Plaintiff,
v.
CAROLYN W. COLVIN Commissioner of Social Security Administration, Defendant.

MEMORANDUM OPINION

MARK E. FORD, Magistrate Judge.

Plaintiff, Khambay Khounvisay, brings this action under 42 U.S.C. §405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act (hereinafter "the Act"), 42 U.S.C. §423(d)(1)(A), 1382c(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:

Plaintiff filed his application for DIB and SSI on February 17, 2012, alleging an onset date of January 1, 1999, due to complications from surgery, a stab wound to the kidney, and hand problems (T. 173). Plaintiff's application was denied initially and on reconsideration. (T. 64-66, 67-69, 70-71, 73-74). Plaintiff then requested an administration hearing, which was held in front of Administrative Law Judge ("ALJ"), Hon. Bill Jones, on November 5, 2012. Plaintiff was present and represented by counsel.

At the time of the hearing, Plaintiff was 49 years of age and had a fourth grade education. (T. 175) His past relevant work experience included working at a chicken house, a meat cutter, and a machine operator in a plastics factory. (T. 33, 53, 155) At the hearing, Plaintiff's counsel requested and the ALJ approved to amend the date of onset to December 1, 2011. (T. 29)

On February 28, 2013, the ALJ found Plaintiff's remote stab wound to the right abdomen status post-surgical repair, right carpal tunnel syndrome with mild right wrist neuropathy, and right thumb pain status post very remote laceration and repair not severe. (T. 17-21) The ALJ concluded Plaintiff was not disabled from December 1, 2011, through the date of his decision, February 28, 2013. (T. 21)

Plaintiff appealed this decision to the Appeals Council, and said request for review was granted on March 20, 2014, as the Appeals Council determined the ALJ's decision was not supported by substantial evidence. The Appeals Council adopted the ALJ's statements as to the relevant law, the evidentiary facts, and the conclusions regarding whether the claimant was disabled. (T. 4) The Appeals Council agreed with the ALJ's findings under step one, that Plaintiff had not been engaged in substantial gainful activity since December 1, 2011. (T. 4) However, at step two of the ALJ's analysis the Appeals Council disagreed with the ALJ's findings that the Plaintiff did not have severe impairments. (T. 4)

In a Decision, dated May 15, 2014, the Appeals Council found Plaintiff's carpal tunnel syndrome with mild neuropathy and right thumb pain status-post remote laceration repair severe, as both impairments would have more than a minimal effect on the claimant's ability to perform basic work activities. (T. 5) The Appeals Council agreed with the ALJ's finding of Plaintiff's remote stab wound to the right abdomen status post-surgical repair non-severe. (T. 5) Considering Plaintiff's age, education, work experience, and the residual functional capacity ("RFC") based upon all of his impairments, the Appeals Council concluded Plaintiff was not disabled from December 1, 2011, through the date of their decision, May 15, 2014. The Appeals Council determined Plaintiff had the RFC to perform medium work, except he could perform only occasional fingering, handling, and grasping with the right hand. (T. 5)

Plaintiff filed this action on May 28, 2014. (Doc. 1) This case is before the undersigned pursuant to the consent of the parties. (Doc. 8) Both parties have filed briefs, and the case is ready for decision. (Doc. 10 and 13)

II. Applicable Law:

The Appeals Council will review a case if:

(1) There appears to be an abuse of discretion by the administrative judge;
(2) There is an error of law;
(3) The action, findings, or conclusions of the administrative law judge are not supported by substantial evidence; or,
(4) There is a broad policy or procedural issue that may affect the general public interest.

20 C.F.R. §404.970. The statue "authorizes the Secretary, not the ALJ, to make reviewable final decisions in disability cases. The Secretary has chosen to act through the Appeals Council, and therefore it is the Council's decision that must be deferred to by the courts if substantial evidence exists to support it, whatever the result might have been if the courts were reviewing the ALJ's decision directly." Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); 20 C.F.R. ...


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