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Ham v. Berryhill

United States District Court, W.D. Arkansas, Hot Springs Division

April 11, 2019

WESLEY J. HAM PLAINTIFF
v.
NANCY A. BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT

          MEMORANDUM OPINION

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

         Wesley J. Ham, (“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 applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act.

         The Parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 4. Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.

         1. Background:

         Plaintiff protectively filed his applications for DIB and SSI on December 1, 2015. (Tr. 16). In these applications, Plaintiff alleges being disabled due to due to back problems and nerve damage in legs, feet and hips. (Tr. 250). These applications were denied initially and again upon reconsideration. (Tr. 16). Thereafter, Plaintiff requested an administrative hearing, and that hearing request was granted. (Tr. 147-148).

         Plaintiff's administrative hearing was held on May 24, 2017. (Tr. 40-71). At this hearing, Plaintiff was present and was represented by counsel, John Howard. Id. Plaintiff and Vocational Expert (“VE”) Alissa Smith testified at the hearing. Id. At the time of the hearing, Plaintiff was forty-six (46) years old and had a high school education. (Tr. 45-46).

         Following the hearing, on September 7, 2017, the ALJ entered an partially favorable decision denying Plaintiff's application for DIB. (Tr. 16-23). The decision was fully favorable with respect to the Title XVI application. Id.

         In this decision, the ALJ determined the Plaintiff met the insured status requirements of the Act through June 30, 2011. (Tr. 19, Finding 1). The ALJ also found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since the alleged onset date of August 1, 2010. (Tr. 19, Finding 2).

         The ALJ determined that as of June 30, 2011, the date last insured, the evidence did not establish the existence of an impairment that was severe for purposes of step two that lasted a duration of twelve months. (Tr. 19, Finding 3). The ALJ found, beginning on December 1, 2015, Plaintiff had the following severe impairments: degenerative disc disease, osteoarthritis, and diabetes mellitus with neuropathy. (Tr. 21, Finding 4). Despite being severe, the ALJ determined that since December 1, 2015, 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 5).

         The ALJ determined that since December 1, 2015, Plaintiff retained the RFC to perform sedentary work, except due to chronic disabling pain, is unable to complete a regular eight-hour workday or a regular 40-hour work week. (Tr. 21, Finding 6). The ALJ also determined that since December 1, 2015, Plaintiff was not capable of performing any of his past relevant work. (Tr. 22, finding 7). The ALJ then determined that since December 1, 2015, there was no other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 22, Finding 11). Based upon these findings, the ALJ determined Plaintiff had not been under a disability, as defined in the Act, before December 1, 2015, but became disabled on that date. (Tr. 23, Finding 12).

         Thereafter, Plaintiff requested the Appeals Council's review of the ALJ's decision. (Tr. 205-207). The Appeals Council denied this request for review. (Tr. 1-6). On July 18, 2018, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 11, 12. This case is now ready for decision.

         2. Applicable Law:

         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. §§ 423(d)(3), 1382(3)(c). A plaintiff must show that his or her disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See 42 U.S.C. § 423(d)(1)(A).

         To determine whether the adult claimant suffers from a disability, the Commissioner uses the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform. See Cox, 160 F.3d at 1206; 20 C.F.R. ...


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