United States District Court, W.D. Arkansas, Hot Springs Division
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
Lloyd Burr (“Plaintiff”) brings this action
pursuant to § 205(g) of Title II of the Social Security
Act (“The Act”), 42 U.S.C. § 405(g) (2006),
seeking judicial review of a final decision of the
Commissioner of the Social Security Administration
(“SSA”) denying his application for Disability
Income Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under Titles II and XVI of the
Act. The parties have consented to the jurisdiction of a
magistrate judge to conduct any and all proceedings in this
case, including conducting the trial, ordering the entry of a
final judgment, and conducting all post-judgment proceedings.
ECF No. 7. Pursuant to this authority, the Court
issues this memorandum opinion and orders the entry of a
final judgment in this matter.
application for DIB and SSI was filed on March 11, 2013. (Tr.
9, 186-195). Plaintiff alleged he was disabled due to
congestive heart failure, obstructive sleep apnea, morbid
obesity diabetes, high blood pressure, hyperventilation
syndrome, cellulitis, wounds on right leg, and hypertension.
(Tr. 211). Plaintiff alleged an onset date of May 1, 2009.
(Tr. 9, 186, 190). These applications were denied initially
and again upon reconsideration. (Tr. 9). Thereafter,
Plaintiff requested an administrative hearing on his
applications and this hearing request was granted. (Tr.
administrative hearing was held on July 29, 2014. (Tr.
24-69). Plaintiff was present and was represented by counsel,
Hans Pullen, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Mack Welch testified at
this hearing. Id. At the time of this hearing,
Plaintiff was forty-seven (47) years old and had a high
school education with two years of college. (Tr. 30, 35).
November 7, 2014, the ALJ entered an unfavorable decision
denying Plaintiff's application for DIB and SSI. (Tr.
9-19). In this decision, the ALJ determined the Plaintiff met
the insured status of the Act through December 31, 2009. (Tr.
11, Finding 1). The ALJ also determined Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”)
since May 1, 2009, his alleged onset date. (Tr. 11, Finding
determined Plaintiff had the severe impairments of bilateral
degenerative joint disease of knee, diabetes mellitus,
chronic obstructive pulmonary disease (COPD), obesity,
hypoventilation syndrome, obstructive sleep apnea,
hypertension, congestive heart failure, and morbid obesity.
(Tr. 11, Finding 3). The ALJ then determined Plaintiff's
impairments did not meet or medically equal the requirements
of any of the Listing of Impairments in Appendix 1 to Subpart
P of Regulations No. 4 (“Listings”). (Tr. 12,
decision, the ALJ evaluated Plaintiff's subjective
complaints and determined his RFC. (Tr. 13-17). First, the
ALJ indicated he evaluated Plaintiff's subjective
complaints and found his claimed limitations were not
entirely credible. Id. Second, the ALJ determined
Plaintiff retained the RFC for sedentary work with
occasional, bending, stooping, and crouching in a controlled
setting with no extreme heat, cold, heavy chemicals, dust, or
fumes. (Tr. 13, Finding 5).
evaluated Plaintiff's Past Relevant Work
(“PRW”). (Tr. 17, Finding 6). The ALJ found
Plaintiff was unable to perform his PRW. Id. The
ALJ, however, also determined there was other work existing
in significant numbers in the national economy Plaintiff
could perform. (Tr. 18, Finding 10). The ALJ based this
determination upon the testimony of the VE. Id.
Specifically, the VE testified that given all Plaintiff's
vocational factors, a hypothetical individual would be able
to perform the requirements of representative occupations
such as a front desk receptionist with 14, 000 such jobs in
the region and 700, 000 such jobs in the nation, and
inventory clerk with 40, 000 such jobs in the region and 200,
000 such jobs in the nation. Id. Based upon this
finding, the ALJ determined Plaintiff had not been under a
disability as defined by the Act from May 1, 2009, through
the date of the decision. (Tr. 19, Finding 11).
Plaintiff requested the Appeals Council review the ALJ's
decision. (Tr. 5). See 20 C.F.R. § 404.968. The
Appeals Council declined to review this unfavorable decision.
(Tr. 1-4). On February 10, 2016, Plaintiff filed the present
appeal. ECF No. 1. The Parties consented to the jurisdiction
of this Court on February 19, 2016. ECF No. 7. Both Parties
have filed appeal briefs. ECF Nos. 11, 12. This case is now
ready for decision.
reviewing this case, this Court is required to determine
whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. See
42 U.S.C. § 405(g) (2006); Ramirez v. Barnhart,
292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is
less than a preponderance of the evidence, but it is enough
that a reasonable mind would find it adequate to support the
Commissioner's decision. See Johnson v. Apfel,
240 F.3d 1145, 1147 (8th Cir. 2001). As long as there is
substantial evidence in the record that supports the
Commissioner's decision, the Court may not reverse it
simply because substantial evidence exists in the record that
would have supported a contrary outcome or because the Court
would have decided the case differently. See Haley v.
Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after
reviewing the record, it is possible to draw two inconsistent
positions from the evidence and one of those positions
represents the findings of the ALJ, the decision of the ALJ
must be affirmed. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
well established that a claimant for Social Security
disability benefits has the burden of proving his or her
disability by establishing a physical or mental disability
that lasted at least one year and that prevents him or her
from engaging in any substantial gainful activity. See
Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act
defines a “physical or mental impairment” as
“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. §§
423(d)(3), 1382(3)(c). A plaintiff must show that his or her
disability, not simply his or her impairment, has lasted for
at least twelve consecutive months. See 42 U.S.C.
determine whether the adult claimant suffers from a
disability, the Commissioner uses the familiar five-step
sequential evaluation. He determines: (1) whether the
claimant is presently engaged in a “substantial gainful
activity”; (2) whether the claimant has a severe
impairment that significantly limits the claimant's
physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or
equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is disabled without regard
to age, education, and work experience); (4) whether the
claimant has the Residual Functional Capacity (RFC) to
perform his or her past relevant work; and (5) if the
claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the
national economy that the claimant can perform. See
Cox, 160 F.3d at 1206; 20 C.F.R. ...