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Weston v. Berryhill

United States District Court, W.D. Arkansas, Hot Springs Division

June 8, 2017

BART ALLEN WESTON PLAINTIFF
v.
NANCY BERRYHILL Commissioner, Social Security Administration DEFENDANT

          MEMORANDUM OPINION

          HON. BARRY A. BRYANT, U.S. MAGISTRATE JUDGE

         Bart Allen Weston (“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 Insurance 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. 8.[1] Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.

         1. Background:

         Plaintiff's applications for DIB and SSI were filed on January 14, 2013. (Tr. 26, 186-195). Plaintiff alleged he was disabled due to a right shoulder injury. (Tr. 212). Plaintiff alleged an onset date of October 1, 2010. (Tr. 186). These applications were denied initially and again upon reconsideration. (Tr. 26). Thereafter, Plaintiff requested an administrative hearing on his applications and this hearing request was granted. (Tr. 132).

         Plaintiff's administrative hearing was held on May 22, 2014. (Tr. 43-69). Plaintiff was present and was represented by counsel, Don Pullen, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) William Elmore testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-five (45) years old and had a tenth grade education. (Tr. 48).

         On October 16, 2014, the ALJ entered an unfavorable decision denying Plaintiff's application for DIB and SSI. (Tr. 26-38). In this decision, the ALJ determined the Plaintiff last met the insured status requirements of the Act on December 31, 2014. (Tr. 28, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since October 1, 2010, his alleged onset date. (Tr. 28, Finding 2).

         The ALJ determined Plaintiff had the severe impairments of right shoulder sprain and obesity. (Tr. 28, 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. 30, Finding 4).

         In this decision, the ALJ evaluated Plaintiff's subjective complaints and determined his RFC. (Tr. 30-36). 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 to perform light work but can only occasionally reach overhead with his right dominant upper extremity. (Tr. 30, Finding 5).

         The ALJ evaluated Plaintiff's Past Relevant Work (“PRW”). (Tr. 36, 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. 36, 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 a representative occupations such as production assembler with 6, 000 such jobs in Arkansas and 175, 000 such jobs in the nation and cleaner/housekeeper with 4, 000 such jobs in Arkansas and 400, 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 October 1, 2010, through the date of the decision. (Tr. 37, Finding 11).

         Thereafter, Plaintiff requested the Appeals Council review the ALJ's decision. (Tr. 20). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-5). On April 28, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on May 17, 2016. ECF No. 8. Both Parties have filed appeal briefs. ECF Nos. 12, 15. This case is now ready for decision.

         2. Applicable Law:

         In 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).

         It is 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. § 423(d)(1)(A).

         To 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. §§ 404.1520(a)-(f). The fact finder only considers the plaintiff's age, education, and work experience in light of his or her RFC if the final stage of this analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).

         3. Discussion:

         Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to find Plaintiff met a Listing, (B) in failing to consider Plaintiff's obesity in combination with his other impairments, and (C) in the RFC determination ECF No. 12, Pgs. 8-20. In ...


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