United States District Court, W.D. Arkansas, Fort Smith Division
MATTHEW L. RUSH PLAINTIFF
NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD, UNITED STATES MAGISTRATE JUDGE.
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).
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).
January 6, 2016, the ALJ held a supplemental administrative
hearing. (ECF No. 12, pp. 400-441). Plaintiff was present and
represented by counsel.
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.
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).
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).
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.
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).
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.
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 ...