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Rush v. Berryhill

United States District Court, W.D. Arkansas, Fort Smith Division

January 17, 2018

NANCY A. BERRYHILL, Commissioner Social Security Administration[1] DEFENDANT



         Plaintiff, Matthew Rush, 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 his claim for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 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).


         Plaintiff filed his applications for DIB and SSI on August 17, 2011, alleging an onset date of February 1, 2011, due to congestive heart failure (“CHF”), crushed disks, sleep apnea, and chronic obstructive pulmonary disease (“COPD”). (ECF No. 12, pp. 153-159, 182, 197-198, 217-218). On November 8, 2012, following a hearing, an Administrative Law Judge (“ALJ”) entered an unfavorable decision. (ECF No. 12, pp. 31-39, 445-453). Plaintiff appealed said decision to this Court, and the matter was remanded to the Administration for further proceedings on April 21, 2015. (ECF No. 12, pp. 473-480).

         On January 6, 2016, the ALJ held a supplemental administrative hearing. (ECF No. 12, pp. 400-441). Plaintiff was present and represented by counsel.

         On July 27, 2016, the ALJ concluded that the Plaintiff's sleep apnea, obesity, degenerative disk disease (“DDD”), major depressive disorder, panic disorder with agoraphobia, and personality disorder - not otherwise specified were severe, but he also concluded they did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. (ECF No. 12, pp. 377-392, 445-453). The ALJ found Plaintiff capable of performing sedentary work involving occasional climbing, balancing, stooping, kneeling, crouching, and crawling, and simple, routine, and repetitive tasks involving only simple, work related decisions with few, if any, workplace changes in a setting with no more than incidental contact with coworkers, supervisors, and the general public. Additionally, the ALJ concluded Plaintiff must avoid moderate exposure to fumes, odors, dusts, gases, poor ventilation, and similar environments. With the assistance of a vocational expert, he then determined Plaintiff could perform work as an addresser, ticket counter, and stuffer.

         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. 13, 14).


         This Court's role is to determine whether substantial evidence supports the Commissioner's findings. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). 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. We must affirm the ALJ's decision if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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 decision of the ALJ. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).

         A claimant for Social Security disability benefits has the burden of proving his disability by establishing a physical or mental disability that has lasted at least one year and that prevents him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §§ 423(d)(1)(A), 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. §§ 423(d)(3), 1382(3)(c). A Plaintiff must show that his disability, not simply his impairment, has lasted for at least twelve consecutive months.

         The 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 his 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 his age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The fact finder considers the Plaintiff's age, education, and work experience in light of his residual functional capacity, only if he reaches the final stage. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).


         On appeal, Plaintiff raises several issues: (1) whether his impairments meet Listing 3.02 for chronic pulmonary insufficiency; (2) whether the ALJ's failure to include COPD as a severe impairment constitutes reversible error; (3) whether the ALJ properly evaluated the medical source evidence and his credibility in determining Plaintiff's RFC; and, (4) whether the ALJ made a proper step five determination. Following a thorough review of the record, the undersigned finds that remand is necessary.

         Plaintiff consistently reported pain radiating into both legs and numbness in his extremities. Physical examinations revealed tenderness to palpation and range of motion deficits. CT scans and MRIs documented grade 1 anterolisthesis of the lumbar spine, neuroforaminal stenosis, central canal stenosis, and a central disk protrusion at the C6-7 level. As a result, doctors prescribed medications to include Cyclobenzaprine (muscle ...

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