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Dewitt v. Saul

United States District Court, W.D. Arkansas, Fort Smith Division

July 30, 2019

LARRY DEWITT, II PLAINTIFF
v.
ANDREW M. SAUL, Commissioner, Social Security Administration[1] DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONO. MARK E. FORD, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Larry Dewitt, II, brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his claim for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act (hereinafter “the Act”). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. 42 U.S.C. § 405(g).

         I. Procedural Background

         Plaintiff filed his application for DIB on January 31, 2017, alleging an onset date of November 1, 2012, due to post traumatic stress disorder (PTSD), back issues, arthritis, high blood pressure, high cholesterol, neuropathy, leg and arm nerve damage, and night terrors. (ECF No. 18, pp. 183-84, 205). Plaintiff's claim was denied initially on May 17, 2017, and on reconsideration on June 19, 2017. (Id., pp. 94-108, 109-23). Plaintiff appeared and testified at a hearing on October 26, 2017, along with his wife, Felicia Dewitt, and a vocational expert, Stacy McKizik. (Id., pp. 52-93). On November 22, 2017, Administrative Law Judge (“ALJ”), Hon. Clifford Shilling, entered an unfavorable decision (Id., pp. 16-36), and Plaintiff requested review by the Appeals Council (Id., pp. 181-82). The Appeals Council denied the request for review on January 12, 2018. (Id., pp. 4-9).

         At the time of the hearing, Plaintiff was 37 years of age and had the equivalent of a high school education. (Id., p. 57). Plaintiff alleged disability beginning November 1, 2012. (Id.). Plaintiff's past relevant work (“PRW”) experience included working as an infantry weapons crew member, personnel clerk, and well service derrick worker. (Id., pp. 64-65, 85-87).

         On November 22, 2017, the ALJ found Plaintiff had three severe impairments: right shoulder permanently dislocated; post-traumatic stress disorder (PTSD); and, depressive disorders. (Id., p. 21). The ALJ determined all other impairments were non-severe, as they have been responsive to treatment and/or cause no more than minimally vocationally relevant limitations. (Id.).

         The ALJ determined Plaintiff had the residual functional capacity (“RFC”) to perform light work, except Plaintiff was limited to occasional reaching, including overhead reaching, on the right. (Id., pp. 23-30). The ALJ further determined Plaintiff could perform work where interpersonal contact was incidental to work performed; complexity of tasks was learned and performed by rote, with few variables, and little judgment required; and, where supervision required was simple, direct, and concrete. (Id.). The ALJ concluded Plaintiff was unable to perform any PRW, but he could perform the requirements of representative occupations such as an agriculture produce sorter and furniture rental consultant. (Id., pp. 30-32). Considering the Plaintiff's age, education, work experience, and his RFC based on all impairments, the ALJ concluded Plaintiff was not disabled from his alleged onset date of November 1, 2012, through his date last insured on September 30, 2016. (Id., pp. 31-32).

         Plaintiff appealed this decision to the Appeals Council, but his request for review was denied on January 12, 2018. (Id., pp. 4-9). Plaintiff then filed this action on March 12, 2018. (ECF No. 1). This matter is before the undersigned for Report and Recommendation. Both parties have filed briefs (ECF Nos. 21, 22), and the case is ready for decision.

         II. Applicable Law

         This Court's role is to determine whether substantial evidence supports the Commissioner's findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial evidence is less than a preponderance, but it is enough that a reasonable mind would find it adequate to support the Commissioner's decision. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). The Court must affirm the ALJ's decision if the record contains substantial evidence to support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). In other words, 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 Court must affirm the ALJ's decision. Id.

         A claimant for Social Security disability benefits has the burden of proving his disability by establishing a physical or mental disability that has lasted at least one year and that prevents him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A). The Act defines “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). A plaintiff must show that his disability, not simply his impairment, has lasted for at least twelve consecutive months.

         The Commissioner's regulations require him to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the claimant is able to perform other work in the national economy given his age, education, and experience. 20 C.F.R. § 404.1520(a)(4). Only if he reaches the final stage does the fact finder consider the Plaintiff's age, education, and work experience in light of his or her residual functional capacity. McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. § 404.1520(a)(4)(v).

         III. Discussion

         The Court must determine whether substantial evidence, taking the record as a whole, supports the Commissioner's decision that Plaintiff had not been disabled at any time from the alleged date of onset of November 1, 2012, through the date last insured of September 30, 2016. Plaintiff raises two issues on appeal, which can be summarized as: (a) the ALJ erred in failing to ...


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