United States District Court, W.D. Arkansas, Fort Smith Division
JUSTIN R. LOWE PLAINTIFF
NANCY A. BERRYHILL Commissioner, Social Security Administration DEFENDANT
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
R. Lowe (“Plaintiff”) brings this action pursuant
to § 205(g) of Title II of the Social Security Act
(“The Act”), 42 U.S.C. § 405(g) (2010),
seeking judicial review of a final decision of the
Commissioner of the Social Security Administration
(“SSA”) denying his applications for Disability
Insurance Benefits (“DIB”), Supplemental Security
Income (“SSI”), and a period of disability under
Titles II and XVI of the Act.
to the provisions of 28 U.S.C. § 636(b)(1) and (3)
(2009), the Honorable P. K. Holmes, III referred this case to
this Court for the purpose of making a report and
recommendation. In accordance with that referral, and after
reviewing the arguments in this case, this Court recommends
Plaintiff's case be REVERSED AND
protectively filed his DIB and SSI applications on April 15,
2014. (Tr. 13). In these applications, Plaintiff alleges
being disabled due to diabetes and neuropathy. (Tr. 192).
Plaintiff alleges an onset date of January 1, 2013. (Tr. 13).
These applications were denied initially and again upon
requested an administrative hearing on August 13, 2014. (Tr.
118-119). Plaintiff's administrative hearing was held on
June 18, 2015. (Tr. 32-65). At this hearing, Plaintiff was
present and was represented by Laura McKinnon. Id.
Plaintiff and Vocational Expert (“VE”) Debra
Steele testified at this hearing. Id. At this
hearing, Plaintiff was thirty-one (31) years old and had an
eleventh grade education (Tr. 38).
16, 2015, the ALJ entered an unfavorable decision denying
Plaintiff's application. (Tr. 13-23). In this decision,
the ALJ found Plaintiff met the insured status of the Act
through March 31, 2017. (Tr. 15, Finding 1). The ALJ also
found Plaintiff had not engaged in substantial gainful
activity since January 1, 2013. (Tr. 15, Finding 2).
next found Plaintiff had severe impairments that included
insulin dependent diabetes mellitus, peripheral neuropathy,
and major depressive disorder. (Tr. 16, Finding 3). Despite
being severe, the ALJ determined those impairments did not
meet or medically equal the requirements of any of the
Listings of Impairments in Appendix 1 to Subpart P of
Regulations No. 4 (“Listings”). (Tr. 16, Finding
decision, the ALJ evaluated Plaintiff's subjective
complaints and determined his RFC. (Tr. 17-21, Finding 5).
First, the ALJ 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 full range of light
work, except needs a job involving no exposure to unprotected
heights or dangerous machinery; work in a controlled
environment in which he is not exposed to temperature
extremes; and a job involving simple tasks and simple
evaluated Plaintiff's Past Relevant Work
(“PRW”). (Tr. 21, Finding 6). The ALJ found
Plaintiff was unable to perform any PRW. Id. The
ALJ, however, also determined there was other work existing
in significant numbers in the national economy Plaintiff
could perform. (Tr. 21, Finding 10). The ALJ based his
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 occupation
such as a bin filler with approximately 2, 870 such jobs in
the region and 232, 680 such jobs in the nation, air purifier
servicer with approximately 1, 150 such jobs in the region
and 139, 760 such jobs in the nation, public area attendant
with approximately 400 such jobs in the region and 88, 830
such jobs in the nation, apparel stock checker with
approximately 136 such jobs in the region and 99, 267 such
jobs in the nation, and merchandise marker with approximately
2, 090 such jobs in the region and 224, 880 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 January 1, 2013 through the date of
the decision. (Tr. 23, Finding 11).
Plaintiff requested the Appeals Council's review of the
ALJ's unfavorable decision. (Tr. 9). On June 24, 2016,
the Appeals Council denied this request for review. (Tr.
1-7). On August 23, 2016, Plaintiff filed the present appeal.
ECF No. 1. Both Parties have filed appeal briefs. ECF Nos.
10, 13. 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) (2010); 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. §§