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Lowe v. Berryhill

United States District Court, W.D. Arkansas, Fort Smith Division

October 3, 2017

JUSTIN R. LOWE PLAINTIFF
v.
NANCY A. BERRYHILL Commissioner, Social Security Administration DEFENDANT

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

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

         Justin 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.

         Pursuant 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 REMANDED.

         1. Background:

         Plaintiff 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 reconsideration. Id.

         Plaintiff 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).

         On July 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).

         The ALJ 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 4).

         In this 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 instructions. Id.

         The ALJ 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).

         Thereafter, 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.

         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) (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).

         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. §§ ...


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