United States District Court, E.D. Arkansas, Western Division
CHARLES L. MIDDLETON PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT
Recommended Disposition (Recommendation) has been sent to
Judge James M. Moody Jr. Any party may file written
objections to this Recommendation. Objections should be
specific and should include the factual or legal basis for
considered, objections must be received in the office of the
Court Clerk within 14 days of this Recommendation. If no
objections are filed, Judge Moody can adopt this
Recommendation without independently reviewing the record. By
not objecting, parties may also waive any right to appeal
questions of fact.
Middleton applied for social security disability benefits
with an amended alleged onset date of January 9, 2016. (R. at
91). After a hearing, the administrative law judge (ALJ)
denied his application. (R. at 22). Subsequently, the Appeals
Council denied his request for review. (R. at 1). The
ALJ's decision now stands as the Commissioner's final
decision, and Mr. Middleton has requested judicial review.
The Commissioner's Decision
found that Mr. Middleton had the following severe
impairments: history of cervical spinal fusion, lumbar
degenerative disk disease, mild osteoarthritis of the left
shoulder, and obesity. (R. at 14). After finding that Mr.
Middleton's impairments did not meet or equal a listed
impairment, the ALJ determined that Mr. Middleton had the
residual functional capacity (RFC) to perform light work,
except that he could not perform overhead reaching or
constant stooping. (R. at 16). This RFC precluded Mr.
Middleton from performing his past relevant work. (R. at 20).
took testimony from a vocational expert (VE), who testified
that a person with Mr. Middleton's age, education, work
experience, and RFC could perform jobs such as cashier II or
sales attendant. (R. 21). Based on this testimony, the ALJ
held that Mr. Middleton was not disabled. (R. at 21-22).
Middleton argues that the RFC determined by the ALJ is not
supported by substantial evidence in the record as a whole;
that the ALJ failed to identify functional limitations
arising from his obesity; that the ALJ failed to perform a
function-by-function analysis; that the ALJ failed to
properly resolve a conflict between the VE's testimony
and the Dictionary of Occupational Titles; and that
the ALJ failed to provide good reason for finding that
allegations of pain were inconsistent with the medical
evidence. As set out below, the ALJ's determination of
Mr. Middleton's RFC is not supported by substantial
evidence upon consideration of the record as a whole.
appeal, the Court must review the Commissioner's decision
for legal error and assure that the decision is supported by
substantial evidence on the record as a whole. Brown v.
Colvin, 825 F.3d 936, 939 (8th Cir. 2016) (citing
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir.
2010)). Stated another way, the decision must rest on enough
evidence that “a reasonable mind would find it adequate
to support [the] conclusion.” Halverson, 600
F.3d at 929. The Court will not reverse the decision,
however, solely because there is evidence to support a
conclusion different from that reached by the Commissioner.
Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir.
gave some weight to every medical opinion in the record.
Consultative examiner Garry Stewart, M.D. found no physical
limitations. (R. at 557-63). Nichole Clark, A.P.R.N., a
treating source, stated that Mr. Middleton should not work
more than twenty-five hours per week and that conservative
treatment had failed. (R. at 564). She later opined that Mr.
Middleton could only sit three hours in an eight-hour day and
stand two hours in an eight-hour day. Ms. Clark also opined
that Mr. Middleton would be limited to lifting or carrying
ten pounds; could never squat; and could only occasionally
bend, crawl, crouch, climb, stoop, or kneel. (R. at 579-81).
stated that Nurse Clark had opined that Mr. Middleton could
“work around a light exertional level, ” but her
exact phrasing was “light duty, ” and that
statement was in the same opinion in which she indicated that
he could sit for only three hours and stand for only two
hours in an eight-hour day and could lift no more than ten
pounds. (R. at 581). It is clear from this context that she
was not using the word “light” to refer to a
light exertional level as defined by the Social Security
Administration. J. Michael Calhoun, M.D., a treating
physician, indicated that Mr. Middleton could and sit for
four hours and stand or walk for four hours in an eight-hour
workday; lift or carry up to twenty-five pounds; and could
never bend, squat, crawl, crouch, climb, stoop, or kneel. (R.
at 590-92). The non-examining State Agency consultants opined
that Mr. Middleton could lift or carry up to twenty pounds;
stand and/or walk for six hours in an eight-hour day; sit for
six hours in and eight-hour workday; and occasionally climb,
balance, stoop, kneel, crouch, or crawl. (R. at 124-25,
139-40). The State Agency consultants also opined that Mr.
Middleton should avoid even moderate exposure to fumes,
odors, dusts, gases, and poor ventilation. (R. at 126, 140).
are several problems with the ALJ's RFC determination. As
Mr. Middleton notes, he has a medically determinable
impairment of chronic obstructive pulmonary disease (COPD).
(R. at 434). The ALJ found that Mr. Middleton's COPD was
a non-severe impairment. (R. at 14). The ALJ is required to
consider what a claimant is capable of in consideration of
all impairments, both severe and non-severe. Ford v.
Astrue, 518 F.3d 979, 981 (8th Cir. 2008). Mr. Middleton
argues that the ALJ failed to include limitations occasioned
by his COPD.
Commissioner cites the ALJ's statement that he took all
of Mr. Middleton's symptoms into consideration and relies
on the presumption of regularity to argue that the ALJ
considered all of Mr. Middleton's impairments.
Wilburn v. Astrue, 626 F.3d 999, 1003 (8th Cir.
2010). The Commissioner does not identify any limitations,
however, that account for Mr. Middleton's COPD.
Furthermore, even the non-examining State Agency consultants
opined that Mr. Middleton should have limitations related to
pulmonary irritants. (R. at 126, 140). Because the ALJ did
not account for Mr. ...