# Henderson v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · September 13, 2018

URL: https://www.frixlaw.com/law-library/cases/10009451

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** September 13, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

VINCENT HENDERSON PLAINTIFF
v. Civil No. 6:17 -cv-6094
NANCY A. BERRYHILL, Commissioner DEFENDANT
Social Security Administration

MEMORANDUM OPINION
Vincent Henderson (“Plaintiff”) brings this action pursuant to §205(g) of Title II of the
Social Security Act (“The Act”), 42 U.S.C §405(g) (2010), seeking judicial review of a decision
of the Commissioner of the Social Security Administration (“SSA”) denying his application for
Supplemental Security Income (“SSI”) under Title XVI of the Act.
The Parties have consented to the jurisdiction of a magistrate judge to conduct any and all
proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and
conducting all post-judgment proceedings. ECF No. 5.1 Pursuant to this authority, the Court
issues this memorandum opinion and orders the entry of a final judgment in this matter.
1. Background:
On December 18, 2014, Plaintiff protectively filed his application. (Tr. 278). In his
application, Plaintiff alleges he was disabled due to headaches, dizziness, and seizures with an
alleged onset date of October 19, 2012. (Tr. 21, 296). The claim was denied initially on March
25, 2015, and again upon reconsideration on July 20, 2015. (Tr. 212).

1 The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript
pages for this case are referenced by the designation “Tr. ___”
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Thereafter, Plaintiff requested an administrative hearing on his application, and this hearing
request was granted. (Tr. 21, 224). An administrative hearing was held on May 26, 2016, in Little
Rock, Arkansas. (Tr. 147). At the administrative hearing, Plaintiff was present and was
represented by counsel, Greg Giles. (Tr. 147-170). Plaintiff and Vocational Expert (“VE”) Dianne

Smith testified at this hearing. Id. On the date of this hearing, Plaintiff testified he was forty-three
(43) years old, which is defined as a “younger person” under 20. C.F.R. § 416.963(c) (SSI), and
testified he had completed the ninth grade in school but did obtain a GED. (Tr. 152). Plaintiff
amended the onset date to November 30, 2015 at the time of the hearing. (Tr. 150). Medical
records were submitted after the hearing and were taken into consideration by the ALJ. (Tr. 21).
On July 19, 2016, the ALJ entered an unfavorable decision on Plaintiff’s application. (Tr.
18-33). In this decision, the ALJ found Plaintiff had not engaged in Substantial Gainful Activity
(“SGA”) since December 8, 2014, the initial application date. (Tr. 23, Finding 1). The ALJ
determined Plaintiff had the following severe impairments: major motor seizures; essential
hypertensions; obesity; organic mental disorder; and affective disorder. (Tr. 23-24, Finding 2).

The ALJ, however, also determined Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 24-26, Finding 3).
In this decision, the ALJ evaluated the Plaintiff’s subjective complaints and determined his
RFC. (Tr. 26-31, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and
determined they were only partially consistent with the evidence. Id. Second, the ALJ determined
Plaintiff returned the RFC for the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as defined in
20 CFR 416.967(a) except the claimant should only occasionally climb ramps or
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stairs; should never climb ladders, ropes, and scaffolds; and can occasionally balance,
kneel, and crawl. Due to seizures, the claimant needs to avoid hazards, such as
unprotected heights and moving mechanical parts; and should not operate a motor
vehicle.
In addition, the claimant should avoid extreme heat in the workplace as well as
flashing lights and beeping sounds. He is limited to unskilled work, meaning the
claimant is able to understand, remember, and carry out simple instructions, make
simple work related decisions, perform work where interpersonal contact is incidental
to the work performed, and perform work where supervision is simple, direct, and
concrete.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined he was unable
to perform any of his PRW. (Tr. 32, Finding 5). The ALJ did, however, determine Plaintiff
retained the capacity to perform other work existing in significant numbers in the national
economy, specifically that of a table worker or a paster. (Tr. 32, Finding 9). The ALJ based this
determination upon the testimony of the Vocational Expert. (Tr. 32-33, Finding 10).
Plaintiff requested that the Appeals Council’s review the ALJ’s unfavorable disability
determination. (Tr. 1). Plaintiff submitted additional medical evidence to the Appeals Council,
none of which was considered and exhibited by the Appeals Council. (Tr. 1, 39-146). On August
14, 2017, the Appeals Council declined to review the ALJ’s disability determination. (Tr. 1). On
December 29, 2017, Plaintiff filed the present appeal. ECF No. 13. The Parties consented to the
jurisdiction of this Court on September 13, 2017. ECF No. 5. Both Parties have filed appeal
briefs. ECF Nos. 13-14. This case is now ready for decision.
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. §405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
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a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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.
See Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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. See 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 or her disability by establishing a physical or mental disability that lasted at least

one year and that prevents him or her from engaging in any substantial gainful activity. See Cox
v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(A). The
Act defines a “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), 1382(3)(c). A plaintiff
must show that his or her disability, not simply his or her impairment, has lasted for at least twelve
consecutive months. See 42 U.S.C. §423(d)(1)(A).

To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)

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whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts

to the Commissioner to prove that there are other jobs in the national economy that the claimant
can perform. See Cox, 160 F.3d at 1206; 20 C.F.R. § 404.1520(a)-(f). The fact finder only
considers the plaintiff’s age, education, and work experience in light of his or her RFC if the final
stage of this analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3. Discussion:
In his appeal brief, Plaintiff alleges his case should be reversed and remanded for
immediate award of benefits for the following reasons: (A) the ALJ’s determination failed to

consider Plaintiff’s non-exertional limitations; and (B) whether substantial evidence supports the
ALJ’s decision. (ECF No. 13 at 1-13). In response, Defendant argues that there is no basis for
reversal in this case. ECF No. 14. The Court will address each of these arguments.
A. Residual Functional Capacity Analysis
Plaintiff claims the ALJ’s RFC determination is not supported by substantial evidence in
the record. ECF No. 13. Plaintiff argues the ALJ did not properly consider the impact of his stroke
in November of 2015. (ECF No. 13, p. 5). Upon review of this argument, the court finds no basis
for reversal on this issue. The ALJ did evaluate the claim of stroke and found there was not medical
evidence establishing the claimant had a stroke, but rather a hospital admission where Plaintiff was

treated for postictal neurological deficits and was found to have illegal drugs in his system. (Tr.
4).

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Plaintiff’s appeal brief does not cite to any such medical record but rather cites to records
from Dr. Oge listing a stroke in his medical history. (ECF No. 13. p. 5). There are references to a
stroke or possible stroke in other medical records, however the record of the actual stroke is notably
absent. An MRI ordered by Nancy Griffin found no evidence of acute intracranial process. (Tr.

128). Plaintiff’s intake paperwork at HealthSouth Rehabilitation, the facility which he was
referred to by the hospital, states that he was seen in the Emergency room for a seizure with
unsteady gait/falling at home and confusion. (Tr. 630). It does not mention a stroke, and states
that his diagnosis is postictal neurological deficits. (Tr. 630). Despite finding that there was
insufficient medical evidence to establish that Plaintiff had a stroke, the ALJ considered Plaintiff’s
limitations alleged to have resulted from the stroke. (Tr. 24). Those include Plaintiff’s recovery
time, which improved quickly after leaving the inpatient rehabilitation center against medical
advice after just one day. (Tr. 28).
The ALJ found the Plaintiff could perform only unskilled work and found Plaintiff had the
RFC to perform sedentary work but could only occasionally climb ramps or stairs; could never

climb ladders, ropes, and scaffolds, and could occasionally balance, kneel, and crawl. (Tr. 26-27).
The ALJ specifically found that, due to his seizures, Plaintiff would need to avoid hazards such as
unprotected heights and moving mechanical parts and should not operate a motor vehicle. (Tr.
26). Additional limitations including avoiding extreme heat as well as flashing lights and beeping
sounds were added. (Tr. 27).
After considering these findings, the court finds no basis for reversal on this issue.
B. Subjective Complaints
In his appeal brief, Plaintiff alleges the ALJ did not properly weigh the effect of the
medication Depakote on his ability to work. (ECF No. 13, p. 5). At the hearing the ALJ asked

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Plaintiff whether he would be able to do a job where he was able to sit down throughout the day
and would not have to be around flashing noises or lights or beeping. (Tr. 160). Plaintiff replied
he could not do such a job because of his Dilantin and nerve pills which make him drowsy and
unfocused. (Tr. 160). Although these are two separate formulations, both medications are used in

the treatment of seizures and are claimed by the Plaintiff to cause drowsiness.
In assessing the Plaintiff’s complaints, the ALJ considered the Plaintiffs testimony that he
was able to perform his own personal care, shop, clean, and perform other household tasks. (Tr.
25). The ALJ also considered the reports of Diane Kogut, Ph.D., and Winston Brown, M.D., the
reviewing State agency medical consultants who opined that the claimant was only mildly limited
in activities of daily living. (Tr. 25).
Although it is clear that Plaintiff suffers some degree of limitation, he has not established
he was unable to engage in any gainful activity during the time period in question. Accordingly,
the Court concludes that substantial evidence supports the ALJ’s conclusion that Plaintiff’s
subjective complaints were not totally credible.

C. Hypothetical Given to Vocational Expert
“The ALJ’s hypothetical question to the vocational expert needs to include only those
impairments that the ALJ finds are substantially supported by the record as a whole.” Martise v.
Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (citing Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir.
2006)). The ALJ’s hypothetical question included all the limitations found to exist by the ALJ and
set forth in the ALJ’s RFC determination. Id. Based on the Court’s previous conclusion that the

ALJ’s RFC findings are supported by substantial evidence, the Court holds that the hypothetical
question was proper, and the VE’s answer constituted substantial evidence supporting the
Commissioner’s denial of benefits. Id., see also Lacroix, 465 F.3d at 889.
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4. Conclusion:
Based on the foregoing, the undersigned finds the decision of the ALJ, denying benefits to
Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating
these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.

ENTERED this 13th day of September 2018.

/s/ Barry A. Bryant_________
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10009451. Public record. Not legal advice.