United States District Court, E.D. Arkansas, Northern Division
21, 2016, Anthony Lively applied for disability benefits,
alleging disability beginning on September 27, 2014. (Tr. at
20) His claims were denied both initially and upon
reconsideration. Id. After a hearing, the
Administrative Law Judge (ALJ) denied the application. (Tr.
at 26) Mr. Lively requested that the Appeals Council review
the ALJ's decision, but that request was denied. (Tr. at
1) Therefore, the ALJ's decision now stands as the final
decision of the Commissioner. Mr. Lively filed this case
seeking judicial review of the decision denying him
The Commissioner's Decision:
found that Mr. Lively had not engaged in substantial gainful
activity since the alleged onset date of September 27, 2014.
(Tr. at 23) At step two of the five-step analysis, the ALJ
found that Mr. Lively had the following severe impairments:
diabetes mellitus, disorder of the spine, degenerative joint
disease, neurocognitive disorder, depression, and anxiety.
finding that Mr. Lively's impairments did not meet or
equal a listed impairment (Tr. at 23), the ALJ determined
that Mr. Lively had the residual functional capacity (RFC) to
perform work at the sedentary level with additional
limitations. (Tr. at 26) He should never climb ladders,
ropes, or scaffolds, and should never work at unprotected
heights, around unprotected, dangerous moving mechanical
parts, or in extreme heat. Id. He retained the
ability to perform simple, routine, and repetitive tasks and
had the ability to make simple work-related decisions.
Id. Supervision would need to be simple, direct, and
concrete with only incidental interpersonal contact.
found that Mr. Lively was unable to perform any past relevant
work. (Tr. at 44) At step five, after taking into account Mr.
Lively's age, education, work experience and RFC, the ALJ
relied on the testimony of a Vocational Expert (VE) to find
that Mr. Lively could perform work in the national economy as
inspector and assembler. (Tr. at 45) Thus, the ALJ determined
that Mr. Lively was not disabled. (Tr. at 26)
Standard of Review
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,
merely 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. 2006).
Lively's Arguments on Appeal
Lively maintains that the ALJ's decision to deny benefits
is not supported by substantial evidence. He argues that the
ALJ failed to give proper weight to medical opinions, failed
to fully develop the record, and failed to incorporate all of
his limitations when finding his RFC. After reviewing the
entire record, the Court concludes that the ALJ did not give
due consideration to Mr. Lively's shoulder problems.
Lively began having left shoulder pain in 2015. He had
limited range of motion and could not lift his left arm above
his shoulder without pain. (Tr. at 995) A 2015 MRI of the
left shoulder showed fluid within the glenohumeral joint and
within the subcoracoid bursa with intrasubstance tear of the
supraspinatus tendon and subscapularis tendon. (Tr. at 1666)
There was also increased signal intensity at the anterior
glenoid labrum, which may indicate a tear. Id.
Lively began physical therapy because of increasing pain,
including pain during the night. (Tr. at 1288-1295) The
physical therapist found decreased active range of motion,
decreased strength, and increased pain in the left shoulder.
Id. Mr. Lively discontinued physical therapy because
he said the pain was worse after therapy, leaving him unable
to lift his arm over his head. Id.
Lively required a second MRI on November 11, 2016. (Tr. at
1315) His pain was progressively worsening. That MRI showed a
substance tear involving components of the infraspinatus
muscle beneath the coracoid posteriorly, a small amount of
fluid collection at the subcoracoid bursa and along the
supraspinatus tendon, and a ...