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Lebow v. Berryhill

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

February 28, 2018

NANCY A. BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT



         Mark David Lebow (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying his application for Supplemental Security Income (“SSI”) under Title XVI 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. 6. Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.

         1. Background:

         Plaintiff protectively filed his disability application on April 19, 2011. (Tr. 8). In this application, Plaintiff alleges being disabled due to an enlarged heart, back problems, chronic bronchitis, and anger issues. (Tr. 133). Plaintiff alleges an onset date of March 1, 2011. (Tr. 8). This application was denied initially and again upon reconsideration. (Tr. 51-52).

         Plaintiff requested an administrative hearing, and this hearing request was granted. (Tr. 23-50). Plaintiff's administrative hearing was held on August 28, 2012 in Little Rock, Arkansas. Id. Thereafter, on September 19, 2012, the ALJ entered a fully unfavorable decision denying Plaintiff's application. (Tr. 5-18). Plaintiff then appealed this unfavorable decision to this Court, and Plaintiff's case was reversed and remanded for further consideration of his treating physician's opinions. See Lebow v. SSA, 6:17-cv-06026 (W.D. Ark. Nov. 12, 2014).

         After this remand, the ALJ held another administrative hearing. (Tr. 543-570). Subsequent to this hearing, the ALJ entered another unfavorable decision.[1] (Tr. 511-529). In this decision, the ALJ found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 19, 2011, his application date. (Tr. 516, Finding 1). The ALJ determined Plaintiff had the following severe impairments: degenerative disc disease of the cervical spine, bulging disc in the thoracic spine, disc protrusions in the lumbar spine, panic disorder, acrophobia, and bronchitis/chronic obstructive pulmonary disease, and a history of polysubstance abuse. (Tr. 517, Finding 2). The ALJ also determined Plaintiff's impairments did not meet or medically equal the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 517-519, Finding 3).

         In this decision, the ALJ evaluated Plaintiff's subjective complaints and determined his RFC. (Tr. 519-527, Finding 4). First, the ALJ evaluated Plaintiff's subjective complaints and found his claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the capacity to perform the following:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except he can occasionally climb, stoop, balance, crouch, kneel, and crawl. He cannot work at unrestricted heights. He cannot climb ladders or scaffolds. He cannot operate moving machinery, such as buses, taxicabs, or forklifts. He cannot operate heavy equipment or drive a vehicle. He can lift 10 pounds, sit six in an eight-hour workday, stand and/or walk six hours in an eight-hour workday, one to two hours without interruption. He can perform unskilled, rote activities; understand and follow concrete instructions. Contact with supervision and coworkers is superficial, he can meet, greet, make change, give simple instructions and directions. He can have limited contact with the public, no cashier-type work. He must work inside climate controlled environments, no temperature extremes, no heavy chemicals, dusts, or fumes. He can occasionally reach and handle.


         Considering his RFC, the ALJ determined Plaintiff did not retain the capacity to perform any of his PRW. (Tr. 527, Finding 5). The ALJ then determined whether Plaintiff retained the capacity to perform other work existing in significant numbers in the national economy. (Tr. 528, Finding 9). The VE testified at the administrative hearing regarding this issue. Id.

         Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform the requirements of representative occupations such as a surveillance systems monitor (sedentary, unskilled) with 500 such jobs in Arkansas and 11, 000 such jobs in the nation. (Tr. 528, Finding 9). Because Plaintiff retained the capacity to perform this other work, the ALJ determined Plaintiff had not been under a disability, as defined by the Act, since April 19, 2011 (his application date). (Tr. 528, Finding 10). Thereafter, on March 13, 2017, Plaintiff filed his Complaint in this action. ECF No. 1. Both Parties have filed appeal briefs and have consented to the jurisdiction of this Court. ECF Nos. 6, 11-12. 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) (2010); 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 ...

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