United States District Court, W.D. Arkansas, Fayetteville Division
ROBERT D. BAKER PLAINTIFF
NANCY A. BERRYHILL,  Commissioner Social Security Administration DEFENDANT
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.
Robert D. Baker, brings this action pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of a decision of the
Commissioner of the Social Security Administration
(Commissioner) denying his claim for supplemental security
income (SSI) benefits under the provision of Title XVI of the
Social Security Act (Act). In this judicial review, the Court
must determine whether there is substantial evidence in the
administrative record to support the Commissioner's
decision. See 42 U.S.C. § 405(g).
protectively filed his current application for SSI on October
28, 2013, alleging an inability to work due to Type II
diabetes, back pain, leg and feet pain, depression, shortness
of breath, learning problems, sleep apnea, unspecified
hyperlipidemia and an abnormal pulse. (Tr. 73, 166). An
administrative video hearing was held on December 17, 2014,
at which Plaintiff appeared with counsel and testified. (Tr.
31-71). Plaintiff's brother and a vocational expert also
testified as this hearing.
written decision dated April 15, 2015, the ALJ found that
during the relevant time period, Plaintiff had an impairment
or combination of impairments that were severe. (Tr. 14).
Specifically, the ALJ found Plaintiff had the following
severe impairments: obstructive sleep apnea (OSA), diabetes
mellitus, lumbago, obesity, generalized anxiety disorder,
major depressive disorder, an intellectual disability and a
personality disorder. However, after reviewing all of the
evidence presented, the ALJ determined that Plaintiff's
impairments did not meet or equal the level of severity of
any impairment listed in the Listing of Impairments found in
Appendix I, Subpart P, Regulation No. 4. (Tr. 14). The ALJ
found Plaintiff retained the residual functional capacity
perform light work as defined in 20 CFR 416.967(b) except he
cannot climb ropes or ladders, and he can occasionally climb
ramps and stairs, balance, stoop, crouch, crawl and kneel. He
must avoid hazards, including unprotected heights and moving
machinery. He can read only very simple words. The claimant
can perform simple, routine and repetitive tasks in a setting
where interpersonal contact is incidental to the work
performed. He can respond to supervision that is simple,
direct and concrete.
(Tr. 17). With the help of a vocational expert, the ALJ
determined Plaintiff could perform work as a silver wrapper;
a cleaner, housekeeping; and a casing splitter. (Tr. 24,
then requested a review of the hearing decision by the
Appeals Council, which denied that request on August 2, 2016.
(Tr. 1-6). Subsequently, Plaintiff filed this action. (Doc.
1). Both parties have filed appeal briefs, and the case is
before the undersigned for report and recommendation. (Docs.
11, 12, 16, 17).
Court has reviewed the entire transcript. The complete set of
facts and arguments are presented in the parties' briefs,
and are repeated here only to the extent necessary.
administrative video hearing held on December 17, 2014,
Plaintiff was fifty-two years of age and had obtained an
eighth grade education that included special education
courses. (Tr. 34, 37). Plaintiff's past relevant work
consists of work as a construction worker. (Tr. 63).
to the relevant time period, Plaintiff sought treatment for
various medical conditions. The medical records for the time
period in questions reflect the following. On November 5,
2013, Plaintiff underwent a polysomnography after being
diagnosed with unspecified sleep apnea. (320-323, 392,
452-460). Plaintiff was diagnosed with sleep apnea and it was
recommended that he follow-up in the sleep disorders center.
November 7, 2013, Plaintiff was seen by Dr. Janelle Potts for
a follow-up for his chronic medical problems which included
diabetes, hyperlipidemia, degenerative disc disease and
tobacco use. (Tr. 352-355, 398). Plaintiff reported that he
was taking his medications as prescribed and was not
experiencing side effects. Plaintiff reported he underwent a
sleep study but did not have the results. Dr. Potts noted
that there had been a great improvement in Plaintiff's
A1C. Plaintiff denied experiencing fatigue, shortness of
breath or polyuria but indicated that he did have back pain
and arthralgias. Dr. Potts recommended Plaintiff continue
with his medications and encouraged him to stop smoking.
December 5, 2013, Dr. Clarence Ballard, a non-examining
medical consultant, completed a RFC assessment stating that
Plaintiff could occasionally lift or carry twenty pounds,
frequently lift or carry ten pounds; could stand and/or walk
for a total of about six hours in an eight-hour workday;
could sit for a total of about six hours in an eight-hour
workday; could push or pull unlimited, other than as shown
for lift and/or carry; and that postural, manipulative,
visual, communicative or environmental limitations were not
evident. (Tr. 79-81).
December 19, 2013, Plaintiff had a follow-up appointment with
Dr. Dimitry A. Fomin subsequent to his polysomnography. (Tr.
320-323, 356-359). Upon examination, Dr. Fomin noted
Plaintiff's recent and remote memory were intact; his
attention and concentration were normal; and his fund of
knowledge was appropriate. Dr. Fomin noted Plaintiff
displayed a full range of active motion and normal functional
strength. Plaintiff ambulated with a normal gait and stance.
Dr. Fomin discussed treatment options and that Plaintiff
chose to try CPAP therapy.
December 23, 2013, Plaintiff underwent a mental diagnostic
evaluation performed by Dr. Terry L. Efird. (Tr. 325-329).
Plaintiff reported that his lungs and back were
“shot.” Plaintiff reported that he did not care
most of the time. Plaintiff also reported experiencing
depression and excessive worry. Plaintiff reported that he
lived with and took care of his elderly mother. Plaintiff
reported difficulty getting into and out of the shower.
Plaintiff indicated that he could perform household chores
adequately. Dr. Efird noted that Plaintiff's fund of
general information placed him in the borderline to low
average range of intellectual functioning. With respect to
adaptive functioning, Plaintiff endorsed the ability to shop
independently, to handle personal finances with cash, and to
perform most activities of daily living adequately. Dr. Efird
opined that Plaintiff had the capacity to perform basic
cognitive tasks required for basic work-like activities.
December 31, 2013, Dr. Christal Janssen, a non-examining
medical consultant, completed a Mental RFC Assessment opining
that Plaintiff was moderately limited in some areas of
functioning. (Tr. 81-83). On the same date, Dr. Janssen
completed a Psychiatric Review Technique form opining that
Plaintiff had mild restriction of activities of daily living;
moderate difficulties in maintaining social functioning;
moderate difficulties in maintaining concentration,
persistence and pace; and no episodes of decompensation, each
of an extended duration. (Tr. 78).
January 7, 2014, Plaintiff underwent a full nighttime
polysomnography. (Tr. 393, 461-469). Plaintiff was diagnosed
with moderate ...