United States District Court, W.D. Arkansas, Hot Springs Division
BRIAN KEITH ORRELL, JR., AND DESTINY N. ORRELL AS SUBSTITUTED PARTIES FOR BRIAN ORRELL, DECEASED PLAINTIFF
NANCY A. BERRYHILL Commissioner, Social Security Administration DEFENDANT
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
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. Pursuant to this authority,
the Court issues this memorandum opinion and orders the entry
of a final judgment in this matter.
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.
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).
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).
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
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).
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).
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.
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).
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.
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,
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 ...