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Graves v. Berryhill

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

February 14, 2018

NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT



         Plaintiff, Michael A. Graves, Sr., brings this action under 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 a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act (hereinafter “the Act”), 42 U.S.C. § 423(d)(1)(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 application for DIB on August 27, 2013, alleging an onset date of August 23, 2013, due to depression, fibromyalgia, hypertension, gastroesophageal reflux disease (“GERD”), reactive airway disease, neck pain, abnormal glucose, polyarthritis, malaise, fatigue, migraines, and left ankle problems. (ECF No. 9, pp. 61, 74). Based on his work credits, the Commissioner determined that the Plaintiff met the insured status requirements of the Act through December 31, 2018. (ECF No. 9, p. 18).

         Plaintiff's application was denied at both the initial and reconsideration levels. An administrative hearing was held on October 29, 2014. The Plaintiff was present and represented by counsel. (ECF No. 9, pp. 34-59). Following the hearing, an administrative law judge (“ALJ”) entered an unfavorable decision on May 2, 2015. (ECF No. 9, pp. 16-28).

         The ALJ concluded that the Plaintiff's hypertension, reactive airway disease, degenerative disc disease (“DDD”) at the C5-C6 level, and depression were severe, but they did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. (ECF No. 9, pp. 18-20). The ALJ found Plaintiff capable of performing light work, except that he must work in a controlled environment where he would not be exposed to dust, fumes, smoke, or temperature extremes. (ECF No. 9, p. 20). In addition, he can do work with simple tasks and simple instructions. (Id.).

         At the time of the administrative hearing held on October 29, 2014, Plaintiff was 45 years of age and had obtained a general equivalency diploma (“GED”). (ECF No. 9, pp. 40-41). Plaintiff's past relevant work consisted of working as a spool operator, air conditioner assembler, truck loader, band saw operator, and radio mechanic. (ECF No. 9, p. 26). With the assistance of a vocational expert, the ALJ determined Plaintiff could perform work as a fast food worker and cashier II. (ECF No. 9, p. 27).

         Plaintiff requested a review of the hearing decision by the Appeals Council, and the request was denied on May 2, 2015. (ECF No. 9, pp. 5-9). Subsequently, Plaintiff filed this action. (ECF No. 1). Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 10, 11).


         This Court's role is to determine whether substantial evidence supports the Commissioner's findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). The Court must affirm the ALJ's decision if the record contains substantial evidence to support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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, the Court must affirm the ALJ's decision. Id.

         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). 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). 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 or her 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 or her age, education, and experience. See 20 C.F.R. § 404.1520(a)(4). Only if he reaches the final stage does the fact finder consider the Plaintiff's age, education, and work experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982) (en banc) (abrogated on other grounds); 20 C.F.R. § 404.1520(a)(4)(v).


         The Court has carefully reviewed the entire transcript. The complete set of facts and arguments are presented in the parties' briefs and are repeated here only to the extent necessary.

         A review of the pertinent medical evidence reflects the following. On December 3, 2009, Plaintiff presented to Dr. Magdalena C. Santos, M.D. to establish her as a primary care physician. (ECF No. 9, pp. 1295-97). Plaintiff reported he smoked for the past 18 years, but his breathing problems did not start until after a deployment to Iraq. (Id.). Plaintiff complained he could not walk one block without shortness of breath. (Id.). Dr. Santos diagnosed Plaintiff with hyperreactive airway disease and tobacco use. (Id.). Plaintiff was instructed to continue all present medications, and he reported he had cut down on tobacco use with the help of Bupropion. (Id.). A chest X-ray was also within normal limits. (ECF No. 9, p. 826).

         On January 4, 2010, Dr. Santos provided a letter stating that Plaintiff suffered from reactive airway disease aggravated by exertion. (ECF No. 9, p. 1293).

         On August 19, 2010, Plaintiff saw Dr. Santos and complained of shortness of breath, eyesight problems, midsternal chest discomfort, and cough with phlegm. (ECF No. 9, pp. 1279-82). Dr. Santos diagnosed him with reactive airway disease, probable GERD, and hypertriglyceridemia. (Id.). Plaintiff was referred to pulmonology with further testing needed, he was started on Omeprazole, and dietary restrictions were advised. (Id.).

         August 20, 2010, a chest X-ray showed no acute cardiopulmonary disease. (ECF No. 9, p. 825). An EKG revealed normal sinus rhythm with preservation of right and left ventricular systolic function. (ECF No. 9, pp. 935-37). Intracardiac chamber dimensions were within normal limits, no significant valvular abnormalities, estimated right atrial pressure was normal, and no significant pericardial effusion was present. (Id.).

         On September 8, 2010, Plaintiff presented to Dr. Glenda Patterson, M.D., a pulmonologist, and complained of worsening dyspnea with activity, protracted cough, and wheezing. (ECF No. 9, pp. 928-29). Plaintiff reported the symptoms stated while on tour in Iraq in 2008. (Id.). Dr. Patterson diagnosed Plaintiff with dyspnea and reactive airway disease secondary to dust, irritant, and pollutant exposure while on tour in the Middle East. (Id.). Plaintiff was to continue Asmanex and Combivent, and start Singulair at bedtime. (Id.).

         Plaintiff also underwent a pulmonary function test (“PFT”). (ECF No. 9, pp. 691-93, 939). Plaintiff's symptoms included dyspnea at rest, dyspnea with exercise, persistent and productive cough, and cigarette smoker. (Id.). Dr. Patterson noted the increased FEF/FIF ratio suggested extra thoracic obstruction with a reduced FEF of 25-75 percent, and PEF suggested presence of obstruction. (Id.). The PFT also showed mild response to bronchodilators, mild restrictive impairment, and mild gas transfer abnormality. (Id.). Dr. Patterson recommended clinical correlation to exclude extra-thoracic obstruction. (Id.).

         On September 14, 2010, a chest computed tomography (“CT”) scan showed patchy right base consolidation without pleural effusion or definite mass, and no pathologic-sized adenopathy. (ECF No. 9, pp. 824-25). Results could have represented ordinary pneumonia superimposed on minimal underlying chronic lung disease. (Id.). Clinical and radiographic follow up was recommended. (Id.). Six minute walk test showed resting room air saturation was 98 percent with a heart rate of 74, exercise at 200 feet was air saturation of 98 percent with a heart rate of 96, at 400 feet was air saturation of 99 percent with a heart rate of 88, and 600 feet was air saturation of 98 percent with a heart rate of 103. (ECF No. 9, p. 1268).

         On October 21, 2010, Plaintiff presented to Dr. Patterson, and Plaintiff remained dyspneic, had decreased pace for activities, avoided strong odors, coughed with irritating agents, and was less jittery with Foradil. (ECF No. 9, pp. 1263-64). Dr. Patterson diagnosed Plaintiff with reactive airway disease with less episodes while on Singulair. (Id.). Dr. Patterson noted Plaintiff avoided known triggers such as perfume and strong odors, no diffuse parenchymal process found on CT scan, and no desaturation with activity. (Id.). Dr. Patterson referred Plaintiff for an allergy evaluation to narrow the range of inciting agents, and Combivent, Singulair, and Asmanex were continued. (Id.).

         On October 28, 2010, Plaintiff presented to Dr. Michael Marsh, M.D., an ENT-otolaryngologist, and he was diagnosed with asthma. (ECF No. 9, p. 694). Plaintiff was allergy tested and subsequently received regular allergy desensitization injections. (ECF No. 9, p. 696-99, 702-07, 758-63, 905, 911-15).

         On January 11, 2011, Dr. Patterson diagnosed Plaintiff with stable reactive airway disease, multiple allergies, and arthralgias with unknown etiology. (ECF No. 9, pp. 1249-50). The plan was to continue Combivent, Asmanex, and Singulair. ...

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