United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
E. FORD UNITED STATES MAGISTRATE JUDGE
Sandra Gilbert, brings this action under 42 U.S.C. §
405(g), seeking judicial review of a decision of the
Commissioner of Social Security Administration (Commissioner)
denying her claim for supplemental security income
(“SSI”) under Title XVI of the Social Security
Act (hereinafter “the Act”), 42 U.S.C. §
1382. 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).
filed her application for SSI on July 17, 2013, alleging
disability due to fibromyalgia, degenerative disk disease
(DDD), chronic obstructive pulmonary disease (COPD), and
arthritis. (ECF No. 8, pp. 168-173). On November 6, 2014, the
ALJ held an administrative hearing. (ECF No. 8, pp. 36-81).
Plaintiff was present and represented by counsel.
26, 2015, the ALJ concluded that the Plaintiff's
fibromyalgia, DDD, COPD, and obesity were severe, but
concluded they did not meet or medically equal one of the
listed impairments in Appendix 1, Subpart P, Regulation No.
4. (ECF No. 8, p. 26). He then found Plaintiff capable of
performing light work involving occasional handling and
fingering with the right upper extremity and no concentrated
exposure to fumes, dust, gases, and poorly ventilated areas.
With the assistance of a vocational expert, the ALJ found the
Plaintiff capable of performing work as a scaling machine
operator and cotton aid classer. (ECF No. 8, p. 30).
Appeals Council denied the Plaintiff's request for review
on July 16, 2016. (ECF No. 8, pp. 5-11). Subsequently,
Plaintiff filed this action. (ECF No. 1). This matter is
before the undersigned for report and recommendation. Both
parties have filed appeal briefs, and the case is now ready
for decision. (ECF No's. 11, 12).
court's role is to determine whether substantial evidence
supports the Commissioner's findings. Vossen v.
Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial
evidence is less than a preponderance but it is enough that a
reasonable mind would find it adequate to support the
Commissioner's decision. Teague v. Astrue, 638
F.3d 611, 614 (8th Cir. 2011). We must affirm the ALJ's
decision if the record contains substantial evidence to
support it. Blackburn v. Colvin, 761 F.3d 853, 858
(8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477
(8th Cir. 2015). In other words, 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, we must affirm the ALJ's decision.
claimant for Social Security disability benefits has the
burden of proving her disability by establishing a physical
or mental disability that has lasted at least one year and
that prevents her from engaging in any substantial gainful
activity. Pearsall v. Massanari, 274 F.3d 1211, 1217
(8th Cir. 2001); see also 42 U.S.C. §
1382c(a)(3)(A). The Act defines “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. §
1382c(a)(3)(D). A Plaintiff must show that her disability,
not simply her impairment, has lasted for at least twelve
Commissioner's regulations require her to apply a
five-step sequential evaluation process to each claim for
disability benefits: (1) whether the claimant has engaged in
substantial gainful activity since filing her claim; (2)
whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the
impairment(s) meet or equal an impairment in the listings;
(4) whether the impairment(s) prevent the claimant from doing
past relevant work; and, (5) whether the claimant is able to
perform other work in the national economy given her age,
education, and experience. 20 C.F.R. § 416.920(a)(4).
Only if he reaches the final stage does the fact finder
consider the Plaintiff's age, education, and work
experience in light of her residual functional capacity.
See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th
Cir. 1982), abrogated on other grounds by Higgins v.
Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R.
appeal, Plaintiff raises four issues: (1) whether the ALJ
fully and fairly developed the record; (2) whether the
ALJ's Step Two determination in supported by substantial
evidence; (3) whether the ALJ's RFC determination is
supported by substantial evidence; and, (3) whether the
vocational expert's testimony regarding the existence of
jobs in significant numbers in the national economy is
supported by the record. After a thorough review of the
record, the undersigned finds that remand is necessary to
allow the ALJ to reconsider the Plaintiff's RFC.
September 3, 2013, Dr. Joe Dunaway treated the Plaintiff for
myalgia, cervicalgia, and a backache. (ECF No. 8, pp.
292-293). She reported decreased grip strength in her left
hand and indicated that she frequently dropped objects. An
examination revealed a decreased range of motion in her back
and neck. Dr. Dunaway completed a medical source statement
indicating, among other things, that the Plaintiff could
reach, handle, finger, and grip for less than two hours
during an eight-hour workday and handle and feel for two
hours during an eight-hour workday. (ECF No. 8, pp. 316-318).
October 3, 2013, at the Commissioner's request, Dr.
Michael Westbrook performed a general physical exam. (ECF No.
8, pp. 301-305). Due to arthritis, Plaintiff had difficulty
holding a pen and writing, difficulty touching her fingertips
to her right palm, and no ability to oppose her thumb to her
fingers with her right hand. The grip strength in her right
hand was 20% of normal, while her ...