United States District Court, W.D. Arkansas, Fort Smith Division
JAMES A. BYRUM PLAINTIFF
NANCY A. BERRYHILL,  Acting Commissioner, Social Security Administration DEFENDANT
MAGISTRATE JUDGE'S REPORT AND
L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE
James A. Byrum, 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) 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
November 16, 2012, alleging an inability to work since
November 1, 2011, due to arthritis, wrist problems, back
problems, shoulder problems, and the fact that he could not
read or write more than his own name. (Tr. 57, 70). An
administrative hearing was held on November 13, 2013, at
which Plaintiff appeared with counsel and testified. (Tr.
25-55). John Massey, a Vocational Expert (VE), also
testified. (Tr. 48-54).
written opinion dated March 20, 2014, the Administrative Law
Judge (ALJ) found that Plaintiff was not disabled, as he was
able to perform other work given his age, education, work
experience, and residual functional capacity (RFC). (Tr. 20).
Plaintiff appealed the decision, and on February 11, 2015,
the Appeals Council denied review. (Tr. 1-3). Plaintiff then
filed a complaint in Federal District Court on April 7, 2015.
On November 17, 2015, the District Court remanded the case to
the Commissioner for further review. The Appeals Counsel
vacated the previous ALJ decision on March 15, 2016. (Tr.
337). The Appeals Council noted that on April 20, 2015,
Plaintiff filed a subsequent application for SSI. (Tr. 339)
The Appeals Council further noted that Plaintiff received a
favorable determination and was found to be disabled as of
April 20, 2015. (Tr. 339). A supplemental hearing was held on
September 1, 2016.
December 14, 2016, the ALJ determined that Plaintiff had the
following severe impairments: chronic obstructive pulmonary
disorder, degenerative disc disease, disorder of the wrists,
a learning disorder, and borderline intellectual functioning.
(Tr. 274). However, after reviewing the evidence in its
entirety, the ALJ determined that the Plaintiff's
impairments did not meet or equal the level of severity of
any listed impairments described in Appendix 1 of the
Regulations (20 CFR, Subpart P, Appendix 1). (Tr. 274-276).
The ALJ found Plaintiff retained the RFC to perform light
work with the following exceptions:
[c]laimant can frequently finger, handle and reach
bilaterally and frequently operate foot controls. He can
occasionally climb ropes and ladders. He can frequently climb
stairs and ramps, balance, crawl, kneel, stoop, and crouch
but should avoid moderate exposure to pulmonary irritants
like dusts, odors and gases. He is limited to simple,
routine, repetitive tasks in a setting where interpersonal
contact is incidental to the work performed and can respond
to supervision that is simple, direct, and concrete. He can
read and write only very simple words.
(Tr. 276-281). The ALJ found that Plaintiff had no past
relevant work; however, he determined that there were other
jobs that existed in significant numbers in the national
economy that Plaintiff could perform. (Tr. 281-282).
Ultimately, the ALJ concluded that Plaintiff had not been
under a disability within the meaning of the Social Security
Act from November 16, 2012, the date his application was
filed, through April 20, 2015. (Tr. 282). Subsequently,
Plaintiff filed a Petition for Judicial Review of the matter
on March 15, 2017. (Doc. 1). Both parties have submitted
briefs, and this case is before the undersigned for report
and recommendation. (Docs. 12, 13).
Court has reviewed the transcript in its entirety. The
complete set of facts and arguments are presented in the
parties' briefs and are repeated here only to the extent
was born in 1965 and completed half of the ninth grade. (Tr.
293). A review of the medical evidence reflects that on
January 14, 2013, Plaintiff underwent a Mental Diagnostic
Evaluation and Psychometric Evaluation by Dr. Steve A. Shry,
Ph.D. (Tr. 247-249). At the time of the evaluation, Plaintiff
reported that one of his grade school teachers told him that
he was dyslexic; that he had a long history of illiteracy;
and that he had a thirteen-year history of chronic pain and
physical problems. (Tr. 247). Dr. Shry observed that
Plaintiff had no history of inpatient or outpatient mental
health treatment; that he was not on psychiatric medication
at the time of the evaluation; that he cited financial
difficulties as an obstacle to treatment; that he had no
spouse or children; that he had not held a job since 2000 due
to back and wrist pain; and that he had “a couple
DWI's” in previous years. (Tr. 247-248). Dr. Shry
described Plaintiff as pleasant, cooperative, friendly, with
normal mood and affect. (Tr. 247). Dr. Shry observed
Plaintiff as having adequate fluency and simple sentence
structure, with logical and relevant responses, and with
associations that were well connected and goal oriented. (Tr.
248). On the Wechsler Adult Intelligent Scale Test, Plaintiff
scored a 76 on the verbal portion, an 84 on the performance
portion, and a full scale score of 78. (Tr. 248). Dr. Shry
opined that Plaintiff seemed to meet the criteria for a
learning disability and borderline intellectual functioning
with a GAF of 50. (Tr. 247-248). Dr. Shry opined that
Plaintiff was capable of handling personal hygiene, shopping,
driving, managing funds, completing household chores, and
participating in social groups. He further opined that
Plaintiff had no impairment in his ability to communicate and
interact in a socially adequate manner or to communicate in
an intelligent and effective manner. (Tr. 249). Plaintiff
appeared to have no impairment in his ability to carry out
simple tasks; however, he had mild to moderate difficulty on
more complex tasks. (Tr. 249). Dr. Shry opined that Plaintiff
had no impairment in his ability to sustain concentration and
persistence when completing tasks; he was capable of
performing simple tasks within an adequate time frame, with
mild to moderate impairment when completing complex tasks;
and he was capable of performing basic calculations. (Tr.
January 16, 2013, a General Physical Examination was
performed by Dr. Michael Westbrook. Dr. Westbrook determined
that while Plaintiff complained of pain in his low back,
wrists, hands, and neck, he had normal grip, normal ROM in
his extremities, could squat and arise from a squatting
position, could stand and walk without assistive devices, and
had normal straight leg raise tests. (Tr. 252-256). Dr.
Westbrook diagnosed Plaintiff with back pain and an old wrist
injury, and opined that he had only mild limitations. (Tr.
252-256). He also noted that Plaintiff smoked one pack of
cigarettes per day. (Tr. 252-256).
January 18, 2013, non-examining physician, Dr. Bill Payne,
completed a Physical RFC Assessment, where he determined that
Plaintiff was capable of medium work. On that same day,
non-examining physician, Dr. Christal Janssen, Ph.D.,
conducted a Psychiatric Review Technique. In that assessment,
Dr. Janssen found that Plaintiff had mild restriction of
activities of daily living; moderate difficulties in
maintaining social functioning and difficulties in
maintaining concentration, persistence or pace; and no
repeated episodes of decompensation. (Tr. 62). Dr. Janssen
also performed a Mental RFC Assessment, where she determined
that Plaintiff was able to perform work where interpersonal
contact was incidental to work performed; complexity of tasks
was learned and performed by rote, few variables, little
judgment; and supervision required was simple, direct, and
concrete. (Tr. 67).
February and April of 2013, Nurse Laura Henson's progress
notes indicated that Plaintiff was a daily smoker with
complaints of trouble breathing, a cough, and pain between
his shoulders. (Tr. 261). Nurse Henson assessed Plaintiff
with reactive airway dysfunction, shortness of breath, upper
respiratory infection, arthropathy of multiple sites, and
lumbago. (Tr. 262). Plaintiff was prescribed medication and
was encouraged to apply for Medicaid so that he could obtain
a pulmonary consultation. (Tr. 262).
April 10, 2013, non-examining medical consultant, Dr. Valerie
Malak, completed a Physical RFC Assessment where she found
that Plaintiff was capable of medium work. (Tr. 79). On April
11, 2013, non-examining medical consultant, Dr. Dan Donahue,
Ph.D. conducted a Psychiatric Review Technique, finding that
Plaintiff had mild restriction of activities of daily living;
moderate difficulties in maintaining social functioning and
difficulties in maintaining concentration, persistence or
pace; and no repeated episodes of decompensation. (Tr. 76).
Dr. Donahue also performed a Mental RFC Assessment, where he
determined that Plaintiff was able to perform work where
interpersonal contact was incidental to work performed;
complexity of tasks was learned and performed by rote, few
variables, little judgment; and supervision required was
simple, direct, and concrete. (Tr. 81).
November 18, 2013, Plaintiff underwent literacy testing
through the Literacy Council of Western Arkansas, Inc. During
testing, Plaintiff reported that he was in special education
while in school and that he had a ninth grade education. (Tr.
268). Plaintiff's scores indicated that he was