Fritschie v. Berryhill

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE

         Seth W. 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.

         Pursuant 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 REMANDED.

         1. Background:

         Plaintiff 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.

         Plaintiff 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).

         On 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 2).

         The ALJ 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).

         In this 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.

         The ALJ 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).

         Thereafter, 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.

         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 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).

         It is 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. §§ ...