United States District Court, W.D. Arkansas, Fort Smith Division
VICKY L. LEE PLAINTIFF
NANCY BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
L. Lee (“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 her application for Disability
Insurance Benefits (“DIB”) under Title II of the
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 her disability application on September
28, 2014. (Tr. 28). Plaintiff alleges being disabled due to
bulging discs in lower back with protrusion (L4, L5, S1, and
S2), benign tumor between L4- L5, left shoulder rotator cuff
injury, right hand injury (with fused joint and limited use),
anxiety, depression, asthma, trouble sleeping, right knee and
hip problems, bilateral plantar fasciitis, bilateral heel
spurs, and neuropathy in both feet. (Tr. 205). This
application was denied initially and again upon
reconsideration. (Tr. 28).
Plaintiff requested an administrative hearing on her
application, and this hearing request was granted. (Tr.
133-134). Plaintiff's administrative hearing was held on
September 17, 2015. Id. At this hearing, Plaintiff
was present and was represented by counsel, Davis Duty.
Id. At this hearing, Plaintiff and Vocational Expert
(“VE”) John Massey testified. Id.
Plaintiff testified she was fifty (50) years old. (Tr. 52).
As for her education, Plaintiff testified she had graduated
from high school and the Police Academy. Id.
29, 2016, the ALJ entered an unfavorable decision denying
Plaintiff's application for disability. (Tr. 28-39). In
this decision, the ALJ found Plaintiff met the insured status
of the Act through December 31, 2016. (Tr. 30, Finding1). The
ALJ also found Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since August 24, 2011,
her alleged onset date. (Tr. 30, Finding 2).
determined Plaintiff had the following severe impairments:
asthma, right hand injury, hand pain, foot pain, and back
disorder. (Tr. 30, Finding 3). The ALJ then 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. 33, Finding 4).
decision, the ALJ evaluated Plaintiff's subjective
complaints and determined her RFC. (Tr. 34-37). First, the
ALJ evaluated Plaintiff's subjective complaints and found
her claimed limitations were not entirely credible.
Id. Second, the ALJ determined Plaintiff retained
the RFC to perform a modified range of light work in that she
could lift and carry 10 pounds frequently and 20 pounds
occasionally; stand, walk, or sit for up to 6 hours in an
8-hour workday with normal breaks; push and pull with same
limitations as lift and carry; occasionally stoop, crouch,
handle, and finger; frequently operate foot controls
bilaterally; and avoid even moderate exposure to fumes,
odors, dusts, gases, and poorly ventilated areas.
then evaluated Plaintiff's Past Relevant Work
(“PRW”). (Tr. 37, Finding 6). The ALJ determined
Plaintiff was not capable of performing her PRW. Id.
The ALJ, however, also determined there was other work
existing in significant numbers in the national economy
Plaintiff could perform. (Tr. 38, Finding 10). The ALJ based
this 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 representative occupations
such as information clerk with approximately 97, 000 such
jobs in the nation and 735 such jobs in Arkansas, customer
complaint clerk with approximately 61, 000 such jobs in the
nation and 490 such jobs in Arkansas, and gate guard with
approximately 134, 400 such jobs in the nation and 700 such
jobs in Arkansas. Id. Based upon this finding, the
ALJ determined Plaintiff had not been under a disability, as
defined in the Act, from August 24, 2011, through the date of
the decision. (Tr. 39, Finding 11).
Plaintiff requested the Appeals Council's review of the
ALJ's unfavorable decision. (Tr. 304). On September 5,
2017, the Appeals Council denied Plaintiff's request for
review of the ALJ's decision. (Tr. 1-7). On October 6,
2016, Plaintiff filed the present appeal. ECF No. 1. Both
Parties have filed appeal briefs. ECF Nos. 14-15. 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. §§