United States District Court, E.D. Arkansas, Eastern Division
PROPOSED FINDINGS AND RECOMMENDED
VOLPE, Magistrate Judge.
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.
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.
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. Â§Â§ 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
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
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. Â§
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. Â§ 1382c(a)(3)(D).
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
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).
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)
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. Â§ 416.920(a)(4)(i)
(2008). If the claimant is, benefits are denied, regardless
of medical condition, age, education or work experience.
Id. Â§ 416.920(b).
involves a determination of whether the claimant has an
impairment or combination of impairments which is
"severe" and meets the duration requirement.
Id. Â§ 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. Â§ 416.920(c).
involves a determination of whether the severe impairment(s)
meets or equals a listed impairment. Id. Â§
416.920(a)(4)(iii). If so, and the duration requirement is
met, benefits are awarded. Id.
claimant does not meet or equal a Listing, then a residual
functional capacity assessment is made. Id. Â§
416.920(a)(4). This residual functional capacity assessment
is utilized at Steps 4 and 5. Id.
involves a determination of whether the claimant has
sufficient residual functional capacity to perform past
relevant work. Id. Â§ 416.920(a)(4)(iv). If so,
benefits are denied. Id.
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. Â§
416.920(a)(4)(v). If so, benefits are denied; if not,
benefits are awarded. Id.
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)
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)
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
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
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 ...