United States District Court, W.D. Arkansas, Fayetteville Division
KENNETH J. NELSON PLAINTIFF
NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE
Kenneth J. Nelson, brings this action pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of a decision of the
Commissioner of the Social Security Administration
(Commissioner) denying his claims for a period of disability
and disability insurance benefits (DIB) and supplemental
security income (SSI) benefits under the provisions of Titles
II and XVI of the Social Security Act (Act). 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. §
protectively filed his current applications for DIB and SSI
on October 2, 2015, alleging an inability to work since June
28, 2014,  due to four herniated discs/fractures,
severe depression, post-traumatic stress disorder (PTSD),
right shoulder pain and inflammation, numbness in hands and
fingers and severe anxiety. (Tr. 320-321, 463, 467). An
administrative hearing was held on October 4, 2016, at which
Plaintiff appeared with counsel and testified. (Tr. 110-160).
written decision dated December 13, 2016, the ALJ found that
during the relevant time period, Plaintiff had an impairment
or combination of impairments that were severe. (Tr. 92).
Specifically, the ALJ found Plaintiff had the following
severe impairments: degenerative disc disease of the cervical
spine at ¶ 4-5, C5-6; an old thoracic fracture at ¶
10-11; spondylosis of the lumbar spine; chronic lower back
pain syndrome; major depression; and anxiety. However, after
reviewing all of the evidence presented, the ALJ determined
that Plaintiff's impairments did not meet or equal the
level of severity of any impairment listed in the Listing of
Impairments found in Appendix I, Subpart P, Regulation No. 4.
(Tr. 95). The ALJ found Plaintiff retained the residual
functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except: The claimant is limited to simple tasks
and simple instructions. He can have no incidental contact
with the public. The claimant cannot be exposed to heights or
unprotected machinery, and cannot operate a motor vehicle. He
can occasionally reach overhead.
(Tr. 95). With the help of a vocational expert, the ALJ
determined Plaintiff could perform work as a marking clerk, a
routing clerk and a cleaner/housekeeper. (Tr. 101).
then requested a review of the hearing decision by the
Appeals Council, which after reviewing additional evidence
submitted by Plaintiff, denied that request on October 18,
2017. (Tr. 1-7). Subsequently, Plaintiff filed this action.
(Doc. 1). Both parties have filed appeal briefs, and the case
is before the undersigned for report and recommendation.
(Docs. 12, 13).
Court has 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.
Court's role is to determine whether the
Commissioner's findings are supported by substantial
evidence on the record as a whole. 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. The ALJ's decision must be
affirmed 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, the decision of the ALJ must be
affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th
well established that 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 Claimant
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, 416.920. Only if the final stage is
reached does the fact finder consider the claimant's age,
education, and work experience in light of his residual
functional capacity. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §§