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Orrell v. Berryhill

United States District Court, W.D. Arkansas, Hot Springs Division

January 11, 2018

BRIAN KEITH ORRELL, JR., AND DESTINY N. ORRELL AS SUBSTITUTED PARTIES FOR BRIAN ORRELL, DECEASED PLAINTIFF
v.
NANCY A. BERRYHILL Commissioner, Social Security Administration DEFENDANT

          MEMORANDUM OPINION

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

         Brian Keith Orrell, Jr. and Destiny N. Orrell, as substituted parties for Brian Orrell, Deceased (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Act. The parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 8.[1] Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.

         1. Background:

         Plaintiff's application for DIB was filed on October 2, 2013. (Tr. 39, 235-238). Plaintiff alleged he was disabled due to a stroke, blood clots, heart attacks, loss of feeling in right leg and foot, swelling in left leg, leg and chest pain, shortness of breath, arterial sclerosis, high blood pressure, headaches, dizziness, blurred vision, anxiety, depression, dementia, confusion, and memory loss. (Tr. 252). Plaintiff alleged an onset date of May 10, 2013. (Tr. 39). This application was denied initially and again upon reconsideration. Id. Thereafter, Plaintiff requested an administrative hearing on his application and this hearing request was granted. (Tr. 136).

         Plaintiff's administrative hearing was held on May 28, 2015. (Tr. 58-98). Plaintiff was present and was represented by counsel, Shannon Muse Carroll, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Dianne Smith, testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-three (43) years old and had a ninth grade education. (Tr. 66).

         On August 11, 2015, the ALJ entered an unfavorable decision denying Plaintiff's application for DIB. (Tr. 39-52). In this decision, the ALJ determined Plaintiff met the insured status requirements of the Act through December 31, 2018. (Tr. 41, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 10, 2013, the alleged onset date. (Tr. 41, Finding 2).

         The ALJ determined Plaintiff had the severe impairments of morbid obesity, heart disease, headaches, and central vascular accident with acute cranial infarcts. (Tr. 41, Finding 3). The ALJ then determined Plaintiff's impairments did not meet or medically equal the requirements of any of the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 44, Finding 4).

         In this decision, the ALJ evaluated Plaintiff's subjective complaints and determined his RFC. (Tr. 45-50). First, the ALJ indicated he 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 a range of sedentary work limited to occasionally lift or carry up to ten pounds; frequently lift or carry less than ten pounds; sit for six hours, and stand and walk for two hours, in an eight-hour workday; option to stand for five minutes after sitting for twenty minutes throughout the workday; occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl; and would miss one day of work per month due to his condition. (Tr. 45, Finding 5).

         The ALJ evaluated Plaintiff's Past Relevant Work (“PRW”). (Tr. 50, Finding 6). The ALJ found Plaintiff was unable to perform his PRW. Id. The ALJ, however, also determined there was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 50, Finding 10). The ALJ based this 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 telephone quote clerk with 69, 500 such jobs in the nation and table worker with 33, 100 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 May 10, 2013, through the date of the decision. (Tr. 51, Finding 11).

         Thereafter, Plaintiff requested the Appeals Council review the ALJ's decision. (Tr. 11). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-5). On January 25, 2017, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on February 9, 2017. ECF No. 8. Both Parties have filed appeal briefs. ECF Nos. 14, 16. 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) (2006); 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. §§ 423(d)(3), 1382(3)(c). A plaintiff must show that his or her disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See 42 U.S.C. § 423(d)(1)(A).

         To determine whether the adult claimant suffers from a disability, the Commissioner uses the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers the plaintiff's age, education, and work experience in light of his or her RFC if the final stage of this analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).

         3. Discussion:

         Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to find Plaintiff met a Listing and (B) in failing to present a proper hypothetical to the VE. ECF No. 14, Pgs. 3-12. In response, the ...


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