United States District Court, W.D. Arkansas, Fort Smith Division
SETH W. FRITSCHIE PLAINTIFF
NANCY BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
Fritschie (“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 Disability
Insurance Benefits (“DIB”) and a period of
disability under Title II of the Act.
to the provisions of 28 U.S.C. § 636(b)(1) and (3)
(2009), the Honorable P. K. Holmes, III referred this case to
this Court for the purpose of making a report and
recommendation. In accordance with that referral, and after
reviewing the arguments in this case, this Court recommends
Plaintiff's case be REVERSED AND
protectively filed his DIB application on June 4, 2015. (Tr.
17). In this application, Plaintiff alleges being disabled
due to central disc extrusion, indentation of ventral thecal
sac, chronic pain, weakness, and loss of muscle control. (Tr.
187). Plaintiff alleges an onset date of December 20, 2013.
(Tr. 17). This application was denied initially and again
upon reconsideration. Id.
requested an administrative hearing on March 22, 2016. (Tr.
107-108). Plaintiff's administrative hearing was held on
September 9, 2016. (Tr. 32-62). At this hearing, Plaintiff
was present and was represented by Davis Duty. Id.
Plaintiff and Vocational Expert (“VE”) Larry
Seifert testified at this hearing. Id. At this
hearing, Plaintiff was thirty-six (36) years old and had a
Bachelor's Degree in Landscape Horticulture. (Tr. 35).
December 14, 2016, the ALJ entered an unfavorable decision
denying Plaintiff's application. (Tr. 17-26). In this
decision, the ALJ found Plaintiff met the insured status of
the Act through September 30, 2018. (Tr. 19, Finding 1). The
ALJ also found Plaintiff had not engaged in substantial
gainful activity since December 20, 2013. (Tr. 19, Finding
next found Plaintiff had severe impairments that included
degenerative disc disease, colitis, and hypertension. (Tr.
19, Finding 3). Despite being severe, the ALJ determined
those 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. 21, Finding 4).
decision, the ALJ evaluated Plaintiff's subjective
complaints and determined his RFC. (Tr. 21-24, Finding 5).
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 RFC to perform a limited range of
sedentary work. Id.
evaluated Plaintiff's Past Relevant Work
(“PRW”). (Tr. 24, Finding 6). The ALJ found
Plaintiff was unable to perform any PRW. Id. The
ALJ, however, also determined there was other work existing
in significant numbers in the national economy Plaintiff
could perform. (Tr. 25, Finding 10). The ALJ based his
determination upon the testimony of the VE. Id.
Specifically, the VE testified that given all Plaintiff's
vocational factors, a hypothetical individual would be able
to perform the requirements of a representative occupation
such as a radio dispatcher with approximately 350 such jobs
in the State and 26, 781 such jobs in the nation, data entry
clerk with approximately 788 such jobs in the State and 103,
426 such jobs in the nation, and telephone solicitor with
approximate 3, 543 such jobs in the State and 178, 233 such
jobs in the nation. Id. Based upon this finding, the
ALJ determined Plaintiff had not been under a disability as
defined by the Act from December 20, 2013 through the date of
the decision. (Tr. 26, Finding 11).
Plaintiff requested the Appeals Council's review of the
ALJ's unfavorable decision. (Tr. 157-162). On November
17, 2017, the Appeals Council denied this request for review.
(Tr. 1-6). On November 15, 2017, Plaintiff filed the present
appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF
Nos. 15, 16. This case is now ready for decision.
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 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. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
well-established that a claimant for Social Security
disability benefits has the burden of proving his or her
disability by establishing a physical or mental disability
that lasted at least one year and that prevents him or her
from engaging in any substantial gainful activity. See
Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act
defines a “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. §§