United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
MARK E. FORD, UNITED STATES MAGISTRATE JUDGE
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).
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.
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).
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.).
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).
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
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.
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
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.
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 ...