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Wilhoite v. Colvin

United States District Court, E.D. Arkansas, Eastern Division

April 27, 2016

TOMMY LYNN WILHOITE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JOE J. VOLPE, Magistrate Judge.

         INSTRUCTIONS

         This recommended disposition has been submitted to United States District Judge James M. Moody, Jr. The parties may file specific objections to these findings and recommendations and must provide the factual or legal basis for each objection. The objections must be filed with the Clerk no later than fourteen (14) days from the date of the findings and recommendations. A copy must be served on the opposing party. The District Judge, even in the absence of objections, may reject these proposed findings and recommendations in whole or in part.

         RECOMMENDED DISPOSITION

         Plaintiff, Tommy Wilhoite, has appealed the final decision of the Commissioner of the Social Security Administration to deny his claim for supplemental security income and disability insurance benefits. Both parties have submitted appeal briefs and the case is ready for a decision. After careful consideration of the record as a whole, I find the decision of the Commissioner is supported by substantial evidence.

         A court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and free of legal error. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996).

         In assessing the substantiality of the evidence, courts must consider evidence that detracts from the Commissioner's decision as well as evidence that supports it; a court may not, however, reverse the Commissioner's decision merely because substantial evidence would have supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).

         "Disability" is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382(a)(3)(A). A "physical or mental impairment' is 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. § 1382c(a)(3)(D).

         Plaintiff alleges he is disabled due to chronic obstructive pulmonary disease (COPD), calcified granuloma, emphysema, and spots on his lungs. (Tr. 277) The Commissioner found that he was not disabled within the meaning of the Social Security Act. The only issue before this Court is whether the Commissioner's decision that Plaintiff was not disabled within the meaning of the Act is supported by substantial record evidence.

         After conducting an administrative hearing, the Administrative Law Judge (ALJ) concluded Plaintiff had not been under a disability within the meaning of the Social Security Act at any time through May 19, 2015 - the date of his decision. (Tr. 229) On September 15, 2015, the Appeals Council denied Plaintiff's request for a review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3) Plaintiff then filed his Complaint initiating this appeal. (Doc. No. 1).

         Plaintiff was forty-nine years old at the time of the hearing. (Tr. 239) He testified he is a high school graduate and attended college for one year. (Tr. 242) Mr. Wilhoite has past relevant work as an iron worker and carpenter. (Tr. 228)

         The ALJ considered Plaintiff's impairments by way of the required five-step sequential evaluation process. The first step involves a determination of whether the claimant is involved in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i) (2008). If the claimant is, benefits are denied, regardless of medical condition, age, education or work experience. Id. § 416.920(b).

         Step 2 involves a determination of whether the claimant has an impairment or combination of impairments which is "severe" and meets the duration requirement. Id. § 416.920(a)(4)(ii). If not, benefits are denied. Id. A "severe" impairment significantly limits a claimant's ability to perform basic work activities. Id. § 416.920(c).

         Step 3 involves a determination of whether the severe impairment(s) meets or equals a listed impairment. Id. § 416.920(a)(4)(iii). If so, and the duration requirement is met, benefits are awarded. Id.

         If the claimant does not meet or equal a Listing, then a residual functional capacity assessment is made. Id. § 416.920(a)(4). This residual functional capacity assessment is utilized at Steps 4 and 5. Id.

         Step 4 involves a determination of whether the claimant has sufficient residual functional capacity to perform past relevant work. Id. § 416.920(a)(4)(iv). If so, benefits are denied. Id.

         Step 5 involves a determination of whether the claimant is able to make an adjustment to other work, given claimant's age, education and work experience. Id. § 416.920(a)(4)(v). If so, benefits are denied; if not, benefits are awarded. Id.

         The ALJ found Plaintiff had not engaged in substantial gainful activity since his application date. (Tr. 221) He found Plaintiff had "severe" impairments in the form of COPD and depression. Id. The ALJ found Mr. Wilhoite did not have an impairment or combination of impairments that met or equaled a Listing. (Tr. 222) He judged that Plaintiff's allegations regarding the intensity, persistence and limiting effects of his symptoms were not credible to the extent alleged. (Tr. 224-228)

         The ALJ found Plaintiff retained the residual functional capacity for light work. (Tr. 223) He determined Plaintiff was unable to perform his past relevant work, so the burden shifted to the Commissioner to show a significant number of jobs within the economy that Mr. Wilhoite could perform, given his residual functional capacity, age, education and past work. (Tr. 228) Based on the testimony of a vocational expert in response to a hypothetical question, the ALJ found there were a significant number of jobs in the economy which Plaintiff could perform, notwithstanding his limitations, for example, machine operator and janitorial worker. (Tr. 228-229) Thus, the ALJ concluded Plaintiff was not disabled. (Tr. 229)

         Plaintiff argues the ALJ erred by concluding his impairments did not meet the Listings. (Doc. No. 7 at 3-4.) He does not cite a specific listing but refers to his depression and his breathing. Id.

         Citing Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007), the Commissioner argues Plaintiff waived this argument by failing to meaningful argue this point on appeal. (Doc. No. 9 at 4.) I tend to agree, but giving Mr. Wilhoite all benefit of the doubt, I will address the merits of his argument.

         Listing 12.04 states:

12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it ...

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