The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
PHILLIP UPCHRUCH PLAINTIFF
v. CIVIL NO. 16-5251
NANCY A. BERRYHILL,1 Commissioner
Social Security Administration DEFENDANT
MEMORANDUM OPINION
Plaintiff, Phillip Upchurch, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claims for supplemental security income (SSI) benefits under the
provisions of Title XVI of the Social Security Act (Act). In this judicial review, the Court
must determine whether there is substantial evidence in the administrative record to support
the Commissioner's decision. See 42 U.S.C. § 405(g).
I. Procedural Background:
Plaintiff protectively filed his current application for SSI on August 29, 2013, alleging
an inability to work due to Hepatitis C, a pinched nerve in the neck, gunshot wounds, and left
arm wounds. (Tr. 30, 75, 156). An administrative video hearing was held on January 22,
2015, at which Plaintiff appeared with counsel and testified (Tr. 25-50).
By written decision dated April 24, 2015, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 14).
1 Nancy A. Berryhill, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
Specifically, the ALJ found Plaintiff had the following severe impairments: degenerative disc
disease at L4-5, L5-S1, C6-7; cervical dystonia; Hepatitis C; Bell’s palsy; and depression.
However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff’s
impairments did not meet or equal the level of severity of any impairment listed in the Listing
of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 14). The ALJ found
Plaintiff retained the residual functional capacity (RFC) to:
perform the full range of light work as defined in 20 CFR 416.967(b) except he
needs a job involving simple tasks and simple instructions.
(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform
work as a counter clerk, a dealer account investigator, and a merchandise marker. (Tr. 19).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence submitted by Plaintiff, denied that request on August 2,
2016. (Tr. 1-6). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the
undersigned pursuant to the consent of the parties. (Doc. 6). Both parties have filed appeal
briefs, and the case is now ready for decision. (Docs. 11, 12).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
II. Applicable Law:
This Court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th
Cir. 2002). 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. The ALJ's decision must
be affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314
F.3d 964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th
Cir. 2001). 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
decision of the ALJ must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
It is well established that 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); see also 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 her 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. See 20 C.F.R. § 416.920. Only if
the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work
experience in light of his residual functional capacity. See 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. § 416.920.
III. Discussion:
When the Appeals Council has considered material new evidence and nonetheless
declined review, the ALJ's decision becomes the final action of the Commissioner. The Court
then has no jurisdiction to review the Appeals Council's action because it is a nonfinal agency
action. See Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). At this point, the Court’s
task is only to decide whether the ALJ's decision is supported by substantial evidence in the
record as a whole, including the new evidence made part of the record by the Appeals Council
that was not before the ALJ. As the United States Court of Appeals for the Eighth Circuit has
noted, "this [is] a peculiar task for a reviewing court." Riley v. Shalala, 18 F.3d 619, 622 (8th
Cir.1994). However, once it is clear that the Appeals Council considered the new evidence,
the Court must factor in the evidence and determine whether the ALJ's decision is still
supported by substantial evidence. This requires the Court to speculate on how the ALJ would
have weighed the newly submitted evidence had it been available at the initial hearing. Flynn
v. Chater, 107 F.3d 617, 621 (8th Cir.1997). Thus, the Court has endeavored to perform this
function with respect to the newly submitted evidence.
The new evidence submitted to the Appeals Council consists of treatment notes from
Mercy Clinic that reported Plaintiff’s complaint of right knee pain in February of 2015, and
Plaintiff’s treatment for Hepatitis C. (Tr. 386-392). Plaintiff also submitted additional medical
records from Dr. James B. Blankenship dated February through June of 2015, that reported
Plaintiff’s conservative treatment had failed and that Plaintiff underwent cervical spine surgery
on May 19, 2015. (Tr. 394-418). Had the ALJ had this medical evidence before him when
making the decision in this case, the outcome may very well have been different. Accordingly,
the Court believes that remand is necessary to allow the ALJ to consider this new and material
evidence. With this evidence, the ALJ should then re-evaluate Plaintiff's RFC and specifically
list in a hypothetical to a vocational expert any limitations that are indicated in the RFC
assessment and supported by the evidence.
The undersigned acknowledges that the ALJ=s decision may be the same after proper
analysis. Nonetheless, proper analysis must occur. Groeper v. Sullivan, 932 F.2d 1234, 1239
(8th Cir. 1991).
IV. Conclusion:
Accordingly, the Court concludes that the ALJ’s decision is not supported by
substantial evidence, and therefore, the denial of benefits to the Plaintiff should be reversed
and this matter should be remanded to the Commissioner for further consideration pursuant to
sentence four of 42 U.S.C. § 405(g).
DATED this 8th day of January 2018.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE