United States District Court, E.D. Arkansas, Little Rock Division
FINDINGS AND RECOMMENDATION
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge J. Leon Holmes. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Wesley Wayne Hutchins (“Hutchins”), in his appeal
of the final decision of the Commissioner of the Social
Security Administration (defendant “Berryhill”)
to deny his claim for Disability Insurance benefits (DIB) and
supplemental security income (SSI), contends the
Administrative Law Judge (“ALJ”) erred: (1) in
giving controlling weight to the opinions of non-examining
state agency consultants over Hutchins' treating
neurologist; and (2) in failing to address or evaluate new
and material evidence in reaching her decision. The parties
have ably summarized the medical records and the testimony
given at the administrative hearing conducted on August 14,
2017. (Tr. 46-78). The Court has carefully reviewed the
record to determine whether there is substantial evidence in
the administrative record to support Berryhill's
decision. 42 U.S.C. § 405(g). The relevant period for
purposes of Hutchins' disability determination is from
August 2, 2015, his alleged onset date, through October 3,
2017, the date of the ALJ's decision in this proceeding.
June 2017 administrative hearing Hutchins was 42, had
achieved a GED, earned 24 hours of college credits, and
earned an industrial electrical license as well as a high
pressure boiler license. He stated he was 6' and weighed
298 pounds, was divorced and lived alone. He described his
past relevant work, tracing it backwards from August 2015
until November 2005. These jobs were uniformly heavy exertion
jobs, requiring him to lift 100 pounds. He confirmed that he
last worked on August 2, 2015, when he injured his back and
went to the hospital. His job from 2008-2013 was as a high
pressure boiler operator. He stated he left that job for
personal reasons. From 2013 until roughly June of 2015, he
did not work full time.
described limited daily activities, including reading, doing
small loads of laundry, and lying down an hour or more each
When asked by the ALJ what prevents him from working,
Hutchins replied: “My legs, my back, muscle spasms, not
being able to strap a tool belt on my side, and climb 110
foot in the air or 40 foot in the air.” (Tr. 60).
Hutchins continued that he lacked mobility and experienced
numbness in his legs, was taking muscle relaxers and pain
medications three times daily, “and it really just, and
then the frustration of not being able to do the things that
I've done from the past of doing.” (Tr. 60).
Hutchins described some treatment for his back pain, and
allowed that the next step may be major surgery. He also
testified to having migraine headaches, somewhat eased by
February 2017 facial surgery, and currently being treated
with Advil. Hutchins stated he was currently taking
nortrptyline daily, trazanidine three times daily,
hydrocodone three times daily, and lisonipril daily.
According to him, he recently discontinued use of gabapentin.
Side effects of his medications were dry mouth and
sleepiness, and the need to stay out of direct sunlight.
estimated he could sit less than 30 minutes, ride in a
vehicle for 30-60 minutes, and has trouble lifting, walking,
climbing, reaching overhead, gripping, and picking up items
from the floor. When asked if there was a reason he could not
perform a desk job, he answered: “The numbness through
my jaw, through my back. It would, I just, and the
psychological. . . I just don't see it.
Psychologically.” (Tr. 69-70). He stated he could not
sit for 6 hours a day. (Tr. 49-68).
Horsman (“Horsman”), a vocational expert,
testified. The ALJ posed a hypothetical question to Horsman,
asking her to assume a worker of Hutchins' age and
educational and work background who could perform light work
but only occasionally climb ramps and stairs, balance, stoop,
kneel, crouch, and crawl, and could occasionally overhead
reach. Horsman indicated such a worker could not perform
Hutchins' past relevant work, but could perform other
jobs, such as assembler of small parts or sorter of
agricultural produce. (Tr. 63-64). A second hypothetical
question was posed, asking Horsman if jobs would be available
if the worker was limited to sedentary work, coupled with the
other limitations from the initial hypothetical question.
Horsman identified the jobs of surveillance system monitor
and callout operator as available to such a worker. In a
third hypothetical, Horsman was asked to assume the worker
would miss two days each month. Horsman identified no jobs
for such a worker. (Tr. 71-75).
ALJ, in her October 2017 decision, found Hutchins had the
following severe impairments: degenerative disc disease of
the lumbar and cervical spine with neuropathy, migraine
headaches, and obesity. She found the impairments, either
singly or in combination, did not meet any of the listed
impairments in 20 C.F.R Part 404. The ALJ determined Hutchins
had the RFC for light work with restrictions which mirrored
those posed to Horsman in the first hypothetical question at
the administrative hearing. The ALJ thoroughly reviewed the
objective medical evidence, including a January 2017 medical
assessment executed by Dr. Mohammad Daaif
(“Daaif”), a treating neurologist. Relying upon
the testimony of Horsman, the ALJ found Hutchins was not
disabled. (Tr. 19-31).
Evidence During the Relevant Period
was seen on August 2, 2015 after suffering a fall resulting
in back pain. (Tr. 427). A cervical CT scan revealed
straightening of the normal lordotic curvature of the
cervical spine, with an impression of cervical strain/spasm
and potential ligamentous injury. (Tr. 433). Hutchins spent
the night in the hospital and was discharged on August 3 with
Flexeril, Naprosyn, and Tramadol. (Tr. 428). No limitations
were imposed by the hospital physician, who sent Hutchins for
was seen on August 3, 2015, by Marion Hord, M.D.
(“Hord”), who diagnosed thoracic back pain,
lumbar spine pain, and left leg weakness. (Tr. 479). Hord
directed Hutchins was “to go to work on light duty with
no lifting pushing pulling or tugging. He is to have limited
walking and no climbing.” (Tr. 479). On ...