Beeman v. Social Security Administration
Court Docket Sheet

Western District of Arkansas

3:2016-cv-03124 (arwd)

SUMMONS Returned Executed by Kevin Kent Beeman. Social Security Administration Commissioner served on 1/17/2017, answer due 3/20/2017.

#: 27 #: 28 Date: January 19, 2017 Michelle Callahan: The following is in response to your January 19, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300030098835. The delivery record shows that this item was delivered on January 17, 2017 at 12:30 pm in FORT SMITH, AR 72901. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service #: 29 #: 30 Date: January 19, 2017 Michelle Callahan: The following is in response to your January 19, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300030098866. The delivery record shows that this item was delivered on January 17, 2017 at 2:02 pm in DALLAS, TX 75202. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service #: 31 #: 32 Date: January 19, 2017 Michelle Callahan: The following is in response to your January 19, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300030098910. The delivery record shows that this item was delivered on January 19, 2017 at 5:19 am in WASHINGTON, DC 20530. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service

ANSWER to [1] Complaint by Social Security Administration Commissioner.

PageID #: 33 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION KEVIN KENT BEEMAN, § § Plaintiff, § § v. § Civil No.: 3:16-cv-03124-MEF § NANCY A. BERRYHILL, § Acting Commissioner, § Social Security Administration, 1/§ § Defendant. § DEFENDANT COMMISSIONER’S ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the Acting Commissioner, Social Security Administration, Defendant, acting by and through her attorneys, Kenneth P. Elser, United States Attorney for the Western District of Arkansas, and Michelle M. Montemayor, Special Assistant United States Attorney for the Western District of Arkansas, and files this, her Answer to the Complaint of Kevin Kent Beeman, Plaintiff, and for her Answer states: 1. Defendant admits the allegations contained in paragraphs 1, 2, 3, 4, and 5 of Plaintiff’s Complaint. 1/Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). PageID #: 34 2. Paragraphs 6 and 7 of Plaintiff’s Complaint state legal conclusions to which no responsive pleading is required. To the extent that the Court deems a responsive pleading is necessary, Defendant denies the same. 3. In response to Plaintiff’s request in paragraphs 1 and 2 of his Prayer that the Court review the Commissioner’s final decision and find him entitled to benefits or remand the case for a new hearing and/or further development, Defendant states that Plaintiff has not shown that an award of benefits or a remand is warranted under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 4. With respect to Plaintiff’s request in paragraph 3 of his Prayer that an attorney’s fee be awarded by the Court, Defendant states that if the Court renders a judgment favorable to Plaintiff, the Court may award a reasonable attorney’s fee, not to exceed 25 percent of the total past-due benefits, pursuant to sections 206(b) and 1631(d)(2) of the Act, 42 U.S.C. §§ 406(b), 1383(d)(2). Any fee so awarded would be paid from such past-due benefits. Further, under the Equal Access to Justice Act, should Plaintiff prevail and file an application for fees against the United States in accordance with the requirements of 28 U.S.C. § 2412, enacted as part of the Equal Access to Justice Act, the Commissioner reserves the right to oppose any award under this statute. 6. With respect to Plaintiff’s request in paragraph 4 of his Prayer for such other and further relief as the Court deems just and proper, Defendant states that this constitutes a Prayer for Relief to which no response is deemed necessary. However, if the Court requires a response, Defendant denies Plaintiff is entitled to judgment or the relief sought. 2 PageID #: 35 7. The remainder of Plaintiff’s Complaint represents a Prayer for Relief to which no responsive pleading is required. To the extent that the Prayer for Relief is deemed to allege facts to which a response is required, Defendant denies the allegations. 8. Defendant denies all other allegations of Plaintiff’s Complaint not specifically admitted. 9. In accordance with section 205(g) of the Social Security Act, 42 U.S.C. §405(g), Defendant files as part of the answer a certified copy of the transcript of the record including the evidence upon which the findings and decisions complained of are based. WHEREFORE, Defendant prays for judgment dismissing the Complaint with costs and disbursements, and for judgment in accordance with section 205(g) of the Social Security Act, 42 U.S.C. §405(g), affirming the Commissioner’s final decision. Respectfully submitted, KENNETH P. ELSER UNITED STATES ATTORNEY By:/s/Michelle M. Montemayor____________ Michelle M. Montemayor Special Assistant United States Attorney Texas Bar No. 14763960 Office of the General Counsel, SSA 1301 Young Street, Suite A-702 Dallas, Texas 75202 Phone: (214) 767.5589 Facsimile: (214) 767.4473 Email: michelle.montemayor@ssa.gov 3 PageID #: 36 CERTIFICATE OF SERVICE I, Michelle M. Montemayor, Special Assistant United States Attorney for the Western District of Arkansas, hereby certify that on March 20, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF System, which will send notification of such filing to the following: Howard D. Olinsky, Plaintiff’s Attorney./s/Michelle M. Montemayor_____ Michelle M. Montemayor Special Assistant United States Attorney 4

SOCIAL SECURITY TRANSCRIPT by Social Security Administration Commissioner.

PageID #: 37 PageID #: 38 Court Transcript Index Civil Action Number: 3:16-CV-03124 Claimant: Kevin Kent Beeman Account Number: 567-41-8541 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 10/25/2016 1-6 6 AC Correspondence (ACCORR), dated 02/01/2016 7-13 7 Request for Review of Hearing Decision/Order (HA 520), dated 14-15 2 01/07/2016 ALJ Hearing Decision (ALJDEC), dated 11/24/2015 16-40 25 Transcript of Oral Hearing (TRANHR), dated 11/09/2015 41-70 30 Exhibits Exhibit No. of No. Description Page No. Pages 1A Initial Disability Determination by State Agency, Title II, dated 71 1 04/15/2014 2A Initial Disability Determination by State Agency, Title XVI, 72 1 dated 04/15/2014 3A Disability Determination Explanation-T2 Initial-PRT; PRFC; 73-87 15 MRFC, dated 04/15/2014 4A Disability Determination Explanation-T16 Initial-PRT; PRFC; 88-102 15 MRFC, dated 04/15/2014 5A Reconsideration Disability Determination by State Agency, 103 1 Title II, dated 10/13/2014 6A Reconsideration Disability Determination by State Agency, 104 1 Title XVI, dated 10/13/2014 7A Disability Determination Explanation-T16 Recon-PRT; PRFC; 105-124 20 MRFC, dated 10/13/2014 8A Disability Determination Explanation-T2 REcon-PRT; PRFC; 125-144 20 MRFC, dated 10/13/2014 1B Representative Fee Agreement-Myler Disability, dated 145 1 01/06/2014 2B Appointment of Representative-Brad Myler, Attorney, dated 146 1 01/21/2014 3B T2 Notice of Disapproved Claim, dated 04/15/2014 147-149 3 4B T16 Notice of Disapproved Claim, dated 04/15/2014 150-153 4 5B Request for Reconsideration, dated 05/12/2014 154-155 2 6B T2 Disability Reconsideration Notice, dated 10/13/2014 156-158 3 7B T16 Disability Reconsideration Notice, dated 10/13/2014 159-161 3 8B Request for Hearing by ALJ, dated 11/21/2014 162-163 2 9B Request for Hearing Acknowledgement Letter, dated 164-174 11 11/26/2014 10B Objection to Video Hearing, dated 12/18/2014 175-176 2 11B Hearing Notice, dated 05/14/2015 177-202 26 12B Representative Fee Agreement Myler/Jeremy Hays, dated 203 1 07/20/2015 DATE: February 8, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. PageID #: 39 Court Transcript Index Civil Action Number: 3:16-CV-03124 Claimant: Kevin Kent Beeman Account Number: 567-41-8541 Exhibits Exhibit No. of No. Description Page No. Pages 13B Appointment of Representative Myler/Jeremy Hays, dated 204 1 07/20/2015 14B Notice Of Hearing Reminder 205-210 6 1D Application for Supplemental Security Income Benefits 211-218 8 (Abbreviated), dated 01/06/2014 2D Application for Disability Insurance Benefits, dated 219-223 5 01/06/2014 3D Application for Disability Insurance Benefits, dated 224-226 3 01/24/2014 4D Life Insurance Policy, dated 02/13/2014 227 1 5D Icers; New Hire; Seqy; Deqy; SSID; Fact, dated 02/19/2015 228-241 14 6D NEW HIRE, SEQY, DEQY, dated 08/27/2015 242-251 10 1E Disability Report-Adult, dated 01/21/2014, from Claimant 252-261 10 2E Work Activity Report SE, dated 02/07/2014, from Claimant 262-269 8 3E SSA-823 Report of SGA Determination-For SSA Use Only, 270-273 4 dated 02/07/2014, from SSA 4E Disability Report-Field Office, dated 02/07/2014, from SSA 274-276 3 5E Pain Questionnaire/Report, dated 02/20/2014, from 277-278 2 Claimant 6E Function Report-Adult, dated 02/20/2014, from Claimant 279-286 8 7E Disability Report-Adult, undated, from Claimant 287-297 11 8E Work History Report, undated, from Claimant 298-308 11 9E Work History Report, dated 03/06/2014, from Claimant 309-316 8 10E Disability Report-Appeals, dated 05/08/2014, from Claimant 317-323 7 11E Disability Report-Field Office, dated 05/12/2014, from SSA 324-325 2 12E Pain Questionnaire/Report, dated 05/26/2014, from 326-327 2 Claimant 13E Function Report-Adult, dated 05/26/2014, from Claimant 328-335 8 14E Pain Questionnaire/Report, dated 09/16/2014, from 336-337 2 Claimant 15E Function Report-Adult, dated 09/16/2014, from Claimant 338-345 8 16E Disability Report-Appeals, dated 11/20/2014, from Claimant 346-353 8 17E Disability Report-Field Office, undated, from SSA 354-355 2 18E Exhibit List to Rep PH2E, dated 02/19/2015, from ODAR 356-366 11 19E Resume of Vocational Expert, from Jim Spragins 367-369 3 20E Response to Vocational Interrogatory, dated 10/01/2015, 370-373 4 from Larry Seifert 21E Request for Vocational Interrogatory, dated 09/28/2015, from 374-379 6 ODAR 22E Proffer Correspondence, dated 10/06/2015, from ODAR 380-382 3 DATE: February 8, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. PageID #: 40 Court Transcript Index Civil Action Number: 3:16-CV-03124 Claimant: Kevin Kent Beeman Account Number: 567-41-8541 Exhibits Exhibit No. of No. Description Page No. Pages 23E Representative Correspondence, dated 01/26/2016, from 383-389 7 Howard J. Olinsky 1F Radiology Report-MRI of Lumbar Spine, dated 10/17/2012 to 390-392 3 03/06/2013, from ROBERT DAVID CANNON, MD 2F Progress Notes, dated 11/26/2012 to 03/28/2013, from THE 393-400 8 NEUROSURGERY SPINE CENTER 3F Hospital Records-Hematuria; Back Pain; Knee Pain, dated 401-447 47 10/17/2012 to 08/30/2013, from NORTH ARKANSAS REGIONAL MEDICAL CENTER 4F Office Treatment Records with Labs, dated 10/10/2012 to 448-469 22 09/23/2013, from OZARK FAMILY PRACTICE 5F Progress Notes, dated 10/01/2013 to 10/28/2013, from 470-485 16 VANTAGE POINT 6F Progress Notes, dated 01/26/2009 to 11/27/2013, from AR 486-496 11 ORTHOPEDICS&SPORTS MEDICINE 7F Request for Medical Advice-Physical/Initial, dated 497 1 03/11/2014, from DDS LIT ROC AR 8F Request for Medical Advice-Mental/Initial, dated 03/11/2014, 498 1 from DDS LIT ROC AR 9F Office Treatment Records with Labs, dated 04/04/2014 to 499-508 10 04/07/2014, from OZARK FAMILY PRACTICE 10F General Medical CE/Evaluation Request, dated 04/14/2014, 509-514 6 from SHANNON H. BROWNFIELD, M. D. 11F Physical/Occupational Therapy Records, dated 05/13/2014, 515-517 3 from NORTH ARKANSAS REGIONAL MEDICAL CENTER 12F Progress Notes, dated 10/27/2010 to 05/14/2014, from 518-524 7 ADVANCED ORTHO SPECIALIST LLC 13F Medical Source-No MER Available, dated 05/20/2014, from 525-527 3 ROBERT DAVID CANNON, MD 14F Medical Source-No MER Available, dated 05/20/2014, from 528-530 3 AR ORTHOPEDICS&SPORTS MEDICINE 15F Progress Notes, dated 06/05/2014 to 07/02/2014, from 531-571 41 INTEGRITY HEALTH 16F Office Treatment Records, dated 05/29/2014 to 08/27/2014, 572-579 8 from OZARK FAMILY PRACTICE 17F Medical Source-No MER Available, dated 09/06/2014, from 580 1 INTEGRITY HEALTH 18F Progress Notes, dated 05/28/2014 to 09/17/2014, from 581-582 2 POWELL ORTHOPEDICS 19F Request for Medical Advice-Physical/Recon, dated 583 1 10/09/2014, from DDS LIT ROC AR 20F Request for Medical Advice-Mental/Recon, dated 584 1 10/09/2014, from DDS LIT ROC AR DATE: February 8, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. PageID #: 41 Court Transcript Index Civil Action Number: 3:16-CV-03124 Claimant: Kevin Kent Beeman Account Number: 567-41-8541 Exhibits Exhibit No. of No. Description Page No. Pages 21F Mental RFC Assessment, dated 05/29/2014, from Dr. 585-588 4 Armstrong 22F Physical RFC Assessment, dated 05/29/2014, from Dr. 589-591 3 Armstrong 23F Office Treatment Records, dated 11/19/2014 to 03/04/2015, 592-604 13 from Ozark Family Practice 24F Office Treatment Records w/Physical Therapy Initial 605-616 12 Evaluations, dated 05/13/2014 to 02/03/2015, from Norht AR Regional Medical Center 25F Polysomnogram Report, dated 02/18/2015, from NARMC 617-618 2 Sleep Center 26F Office Treatment Records, dated 01/14/2015, from Powell 619-620 2 Orthopedics-Mark Powell, MD DATE: February 8, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 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APPEAL BRIEF (SOCIAL SECURITY) by Kevin Kent Beeman.

PageID #: 662 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS KEVIN KENT BEEMAN, Plaintiff, CIVIL ACTION NO. 3:16-cv-03124 (MEF)-v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF A SOCIAL SECURITY APPEAL ISSUES PRESENTED FOR REVIEW 1. The ALJ erred by failing to properly evaluate the limitations opined by consultative examiner Dr. Brownfield, according the opinion "great weight" but failing to adopt or explain the rejection of her opined limitations. 2. The ALJ erred by according inadequate weight to Claimant’s primary care physician Dr. Armstrong, thereby failing to support the residual functional capacity determination by substantial evidence. 3. The ALJ’s Step 5 determination is unsupported by substantial evidence. PROCEDURAL STATUS On December 13, 2013, Kevin Kent Beeman ("Plaintiff"), protectively applied for Title II disability insurance benefits and Title XVI Supplemental Security Income, alleging disability beginning September 26, 2013, due to back problems, degenerative disc disease, scoliosis, arthritis, knee problems, depression, and anxiety. Administrative Transcript ("T") at 19, 253. The claims were initially denied on April 15, 2014, and upon reconsideration on October 13, 2014. T 19. After a hearing, Administrative Law Judge ("ALJ") Edward M. Starr denied the application. T 19-34. 1 PageID #: 663 In the decision, the ALJ found Plaintiff had not engaged in substantial gainful activity since September 26, 2013, the alleged onset date. T 21. He found that Plaintiff suffered from the severe impairments of degenerative disc disease, osteoarthritis, diabetes mellitus, hypertension, obesity, sleep apnea, anxiety, and affective disorder. T 22. Additionally, he found that Plaintiff does not have an impairment or combination of impairments that met or medically equaled one of the listed impairments. T 22. The ALJ then determined that Plaintiff had the residual functional capacity ("RFC") to: Perform light work… except he can occasionally climb, balance, crawl, kneel, stoop, and crouch. He can do work where interpersonal contact is routine and superficial, where complexity of tasks is learned by experience, with several variables and judgment is used within limits. Supervision required is little for routine but detailed for non-routine tasks. T 26. Based on this functional capacity, the ALJ found Plaintiff unable to perform any past relevant work, but there are jobs that exist in significant numbers in the national economy that Plaintiff could perform. T 32-43. Thus, the ALJ found Plaintiff not disabled. T 34. On October 25, 2016, the Appeals Council denied a Request for Review. T 1-4. This action followed. This Court has jurisdiction of this action. 42 U.S.C. §§ 405(g), 1383(c)(3). STATEMENT OF FACTS On the alleged onset date, Plaintiff was 52 years old. T 33. Plaintiff has at least a high school education. T 33. He reported past work as a delivery driver, retail salesman, a staff member in a bail bond business, and work in radio and radio sales. T 254. Plaintiff’s date last insured for disability benefits is December 31, 2018. T 21. 2 PageID #: 664 A. Medical records1 On October 12, 2012, Plaintiff treated with Dr. Victor Armstrong, his primary care physician, and complained of back pain worsening over the past few months. T 448. Examination revealed tenderness to palpation in the paraspinal muscles, and Dr. Armstrong ordered an MRI. T 448. He prescribed Flexeril for back spasms and Ultram for pain. T 448. On October 17, 2012, MRI of the lumbar spine revealed levoscoliosis on the order of 15 degrees. T 392. There was moderate to moderately severe associated osteoarthritis with facet hypertrophy and moderate diffuse degenerative changes in the discs. T 392. The combination of disc disease and facet hypertrophy caused "significant foramen stenosis at multiple levels" in the thoracic and lumbar spine. T 392. On November 26, 2012, Plaintiff treated at the Neurosurgery Spine Center with James B. Blankenship, M.D., upon referral from Dr. Armstrong. T 397. Dr. Blankenship noted that x-rays revealed severe rotary scoliosis to the right, secondary to marked disc space degeneration, as well as severe lateral listhesis of L4 and L5, left to right. T 398. Dr. Blankenship’s examination findings included antalgic gait, restricted range of motion in the lumbar spine, and deep tendon reflexes were absent in the ankles and knees bilaterally. T 398. Dr. Blankenship concluded, "[Plaintiff] has quite possibly the worst-looking spine I have seen in an early fifties gentleman. He has lateral listhesis at L4-L5 with a lateral traction spur with a near fusion 1 Per this Court’s Order dated March 27, 2017, Plaintiff’s counsel identifies the following transcript page numbers as duplicative: T 401 (duplicative of T 392); T 493-94 (duplicative of 444-45); T 495 (duplicative of T 436); T 614-16 (duplicative of T 515-17). Additionally, the following transcript page numbers, while relevant to Plaintiff’s overall medical condition, are not directly related to the legal errors raised in this memorandum: T 402-21 (discussing urogenital problems); T 423-35 (treatment for flank pain); T 454-58 (treatment for diabetes); T 618 (sleep study). 3 PageID #: 665 of it on the right side with marked settling. The surprise is not that he has had pain in his back almost his entire life or that it has gotten worse over the last six months, the surprise is that he has not been worse than this…" He further noted surprise that Plaintiff had no extensive prior treatment due to the severity of the condition. T 399. He prescribed "an aggressive, active conservative treatment plan," with Lyrica twice daily and a referral to Dr. Cannon for injections, and a referral for aggressive physical therapy. T 399. Dr. Blankenship also raised the idea of weight loss surgery as an option Plaintiff should consider. T 400. On January 7, 2013, David Canon, M.D., recommended epidural injections due to low back pain, bilateral hip pain, and buttock pain. T 391. He underwent the injections on March 6, 2013, and at a follow up appointment on March 15, 2013, he reported no relief with the injections. T 390. On March 28, 2013, Plaintiff followed up with Dr. Blankenship for an assessment after injections and physical therapy, and reported he had no relief with the injection and very minimal relief with physical therapy. T 393. He rated his pain "at 80% towards the wors[t] pain imaginable." T 393. Clinical findings again included range of motion with flexion and extension limited to degrees due to pain, antalgic gait, absent deep tendon reflexes, and Plaintiff’s body mass index was between 40.0-49.9. T 394-95. Dr. Blankenship noted that Plaintiff’s insurance would not cover Lyrica, so he was given Gabapentin which was not expected to provide relief. T 396. Dr. Blankenship recommended weight loss surgery to improve his health, and then return to discuss the plan of action to treat his back. T 396. In June and July 2013, Plaintiff treated at Arkansas Orthopedic and Sports Medicine for left knee pain with limited range of motion and crepitus. T 440-41. X-rays revealed 4 PageID #: 666 moderately severe degenerative joint disease, and he underwent a corticosteroid injection on June 28, 2013. T 440. He returned for a recheck on July 20, 2013, and reported initial relief following the injection for a very short period of time, followed by a return of pain and pain with activities. T 440. The assessment was left knee pain with degenerative joint disease suspicious for a lateral meniscus tear, and he was referred for an MRI. T 440 On August 6, 2013, MRI of the left knee revealed a large effusion and bilateral meniscal tears with very lax posterior cruciate ligament and thinned anterior cruciate ligament. T 436. There was thinning of the articular cartilage. T 436. On August 7, 2013, Plaintiff treated at Arkansas Orthopedics and Sports Medicine for left knee pain and swelling, aggravated by pivoting and twisting. T 439. Examination revealed effusion, decreased range of motion with pain, positive McMurray’s test, and medial and lateral joint line tenderness. T 439. The assessment was left lateral meniscus tear with possible medial meniscus tear. T 439. Dr. Sidani recommended diagnostic arthroscopic surgery, due to the failure of corticosteroid injections. T 439. On August 30, 2013, Dr. Sidani performed a left knee arthroscopy with partial lateral meniscectomy and limited synovectomy of the left knee. T 444. The post-operative diagnoses were synovitis of the left knee, left lateral meniscus tear, and grade II chondromalacia of the lateral compartment. T 444. Plaintiff treated with Dr. Sidani on October 7, 2013, for continued knee pain, stiffness, and swelling. T 487. Examination revealed pain on range of motion and tenderness to palpation of the lateral joint line. T 487. Dr. Sidani assessed likely postoperative synovitis and stiffness, and recommended an injection and physical therapy. T 487. 5 PageID #: 667 On November 12, 2013, Plaintiff followed up at Arkansas Orthopedics and Sports Medicine for continued pain and discomfort in the left knee. T 487. He reported that a corticosteroid injection received one month previously helped only for a few days, and the pain returned. T 487. He complained of difficulty walking around the house without pain. T 487. Examination revealed pain with range of motion and trace effusion, and the assessment was degenerative joint disease. T 487. P.A. A. Rose administered a Supartz injection, as Plaintiff had lost insurance and physical therapy was therefore not an option. T 487. She administered a second Supartz injection on November 19, 2013, as Plaintiff reported no significant improvement with the first. T 486. On November 26, 2013, he reported 25% improvement with the two injections, and underwent a third. T 486. On April 2, 2014, Plaintiff treated with Dr. Armstrong and reported he was on Medicaid and requested a referral for treatment of left knee pain. T 501. He indicated the pain was about the same as it was before the surgery, and injections did not help. T 501. On April 4, 2014, Plaintiff treated with Dr. Armstrong and complained of continued knee pain and ongoing back pain. T 499. He again requested a referral to a different orthopedist for a second opinion due to pain. T 499. He reported his back pain was so severe that he was unable to sit for more than five minutes, but reported his "nerves" felt better since he was no longer stressed at work due to leaving the job. T 499. The plan was for Plaintiff to seek chiropractic treatment, continue weight loss, and continue with a disability filing. T 499. He noted Plaintiff would be referred to another orthopedist should left knee pain persist. On April 14, 2014, Plaintiff presented for a consultative examination with Shannon 6 PageID #: 668 Brownfield, M.D., for an evaluation of degenerative disc disease, scoliosis, arthritis, knee problems, depression, and anxiety. T 509. Physical examination revealed limited range of motion in the knees, with greater limitation on the left than right. T 511. There was significantly reduced range of motion in the lumbar spine, and he walked with a left sided limp. T 511. He experienced pain when rising from a seated position, and imaging of the knees revealed decreased joint spacing in the knees and osteoarthritis. T 512-13. Dr. Brownfield opined Plaintiff has a moderate/severe limitation for standing, walking, kneeling, lifting, stooping. On April 16, 2014, Plaintiff presented to Mark Powell, M.D., at Advanced Orthopedic Specialists for an evaluation of knee pain. T 521. He reported lack of improvement with prior surgery, continued pain and popping in the left knee, lack of improvement with Supartz injections, and short lived relief with cortisone injections. T 521. Dr. Powell’s clinical examination revealed effusion, crepitus, and tenderness in the knee, and he ordered x-rays. T 521. X-rays revealed lateral joint line narrowing, and Dr. Powell assessed left knee internal derangement. T 522. He scheduled Plaintiff for a second left knee surgery for May 9, 2014 due to lack of improvement with injections. T 520, 522. On May 13, 2014, upon referral from Dr. Powell, Plaintiff presented for a physical therapy evaluation at North Arkansas Regional Medical Center. T 515. He reported doing better following the second surgery, but that his knee feels "heavy and tight," and he has to descend stairs one at a time. T 515. Physical exam revealed decreased range of motion in the knees and decreased strength in the left hip and knee. T 515. His gait was antalgic with a decrease in gait velocity, and moderate edema was present. T 515. He was admitted to 7 PageID #: 669 physical therapy to improve left knee strength, stability, and range of motion to return to prior level of function. T 516. On May 9, 2014, Plaintiff presented for a disability evaluation with Dr. Armstrong, and complained of continued back and knee pain that bothers him daily. T 572. He followed up on June 5, 2014 for severe lower back pain. T 574. Dr. Armstrong noted significant degenerative joint disease in the lumbar spine with scoliosis and bone spurring. T 574. He assessed lumbago, prescribed Soma, and referred Plaintiff to a chiropractor. T 575. On May 29, 2014, Dr. Armstrong completed a residual functional capacity questionnaire regarding Plaintiff’s impairments of osteoarthritis, degenerative joint disease, and scoliosis, and opined Plaintiff’s prognosis is poor. T 590. He noted Plaintiff suffers symptoms of chronic back pain, stress, and anxiety, and his symptoms are constantly severe enough to interfere with the attention and concentration required to perform simple work-related tasks. T 590. He opined Plaintiff has the following exertional capacity: sit for 5 minutes at a time and for 1 hour total in an 8-hour workday; stand/walk for 5 minutes at a time and for 1 hour total in an 8-hour workday; can walk ½ a city block without rest or significant pain; can never lift and carry even less than 10 pounds in a competitive work situation; he requires the option to shift positions at will from sitting, standing, and walking; and he would require unscheduled 15 minute breaks every 15-20 minutes. T 590-91. He opined Plaintiff would be absent from work more than four times monthly due to his impairments and treatment, and he is not physically capable of working an 8-hour day, 5 days a week on a sustained basis. T 591. Plaintiff followed up with Dr. Powell on May 28, 2014 for left knee pain, status-post 8 PageID #: 670 arthroscopy, and reported soreness in the left knee. T 582. Examination revealed effusion and healing, with no signs of infection. T 582. On June 5, 2014, Plaintiff presented to Integrity Health Centers for chiropractic treatment due to low and mid back pain which was hindering his daily activities. T 566. He reported the pain is constant, severe, and radiates to the bilateral legs, and it is aggravated by walking and range of motion. T 566. Examination revealed muscle spasms in the thoracic and lumbar paraspinal regions with decreased range of motion in the spine and antalgic gait. T 566-67. Following testing, the assessment was thoracic segmental dysfunction, lumbar dysfunction, sciatica, lumbosacral subluxation, and pelvic segmental dysfunction. T 569. Dr. Thompson administered manual adjustments to correct subluxations and enhance joint biomechanics. T 570. He was scheduled for 2 visits weekly for 3 weeks with goals to reduce mid and low back pain. T 570. Plaintiff underwent regular chiropractic treatments through July 2, 2014 (T 531-65), when Dr. Johnson determined Plaintiff had reached maximum medical improvement. T 535. He indicated Plaintiff’s upper back pain responded well to care, but the lower back did not, and he referred Plaintiff back to Dr. Armstrong for further back care. T 535. On July 2, 2014, Plaintiff presented to Dr. Armstrong and reported he was released by chiropractics but continued to have significant low back pain. T 576. Dr. Armstrong continued the current treatment plan. T 576. Plaintiff followed up with Dr. Armstrong on August 27, 2014, for left wrist pain, but x-rays revealed no acute pathology. T 578-79. Dr. Armstrong recommended he continue to wear his carpal tunnel brace when necessary, and noted he can raise the issue with orthopedics if pain continues. T 579. 9 PageID #: 671 On September 17, 2014, Plaintiff treated with Dr. Powell at Advanced Orthopedic Specialists for left wrist pain persisting for 3-4 weeks. T 581. He reported previous treatment with a splint and an injection, which did not help. T 581. He reported increased pain with movement and tingling in all fingers, which worsens at night. T 581. Examination revealed tenderness to palpation and positive Finkelstein’s test, and Dr. Powell assessed de Quervain’s tenosynovitis. T 581. He placed a left thumb splint and recommended physical therapy for the left wrist. T 581. He underwent physical therapy for the left wrist beginning on October 6, 2014, with goals of decreasing pain and increasing function. T 609 Plaintiff presented for a physical therapy evaluation on February 3, 2015 regarding left knee pain and stiffness, and reported that a January 14, 2015 injection (T 620) had significantly decreased his pain. T 606. Despite the decrease in pain, he continued to complain of soreness and weakness, and his pain level with weight bearing was 7/10. T 606. He had difficulty with extended standing and ambulation, was unable to climb stairs alternating, and reported decreased balance. T 606. Examination revealed significantly decreased range of motion in the knee and hip, decreased left leg strength, and tenderness in the knee. T 606. He was scheduled for physical therapy twice weekly for 3 weeks due to insurance limitations. T 607. Mental Impairments On June 5, 2013, Plaintiff treated with Dr. Armstrong and reported Prozac was no longer working for his symptoms. T 460. He reported feeling edgy, and that he was argumentative and angry with his wife over things that would normally not upset him. T 460. He indicated Prozac used to help, but lost effectiveness. T 460. Dr. Armstrong 10 PageID #: 672 prescribed a taper off of Prozac and prescribed Wellbutrin. T 460. On September 23, 2013, Plaintiff reported continued anger issues and that the Wellbutrin was not helping. T 462. He complained of worsening emotional and anger issues over the past two weeks, and his wife reported he suffered crying spells. T 462. Dr. Armstrong diagnosed a mood disorder and noted possible bipolar disorder. T 462. He recommended tapering off Wellbutrin and recommended him to psychiatric treatment. T 462. On October 1, 2013, upon Dr. Armstrong’s referral, Plaintiff underwent a diagnostic evaluation with Vantage Point Outpatient Services due to depressed mood, anger discontrol, mood instability, and anxiety. T 475-76. Primary symptoms included irritability with growth into anger explosion, depressed mood, apathy, isolating, insomnia, psychomotor retardation, and daily anxiety. T 475. He complained of anxiety causing difficulty sleeping due to excessive thoughts, and irritability and anger. T 483. Mental status assessment revealed anxious mood, limited judgment, loud speech, and occasional lapse in attention due to preoccupations and stress. T 476-77. His affect was not congruent with mood, and he tended to suppress emotions, make self-deprecating jokes and statements, and could not admit to his emotions honestly. T 483. He reported relationship issues in his marriage, and complained of chronic pain due to medical issues. T 478, 481. The diagnostic Impressions were generalized anxiety disorder and depressive disorder, NOS, and he was recommended to receive mental health treatment and counseling. T 475. His preliminary plan for treatment and discharge was 90-180 days of treatment until goals were completed. T 482. Plaintiff presented for individual therapy on October 8, 2013, and his treatment goals 11 PageID #: 673 were outlined to reduce depression, anxiety, and anger. T 473. Clinical observations included depressed and agitated mood, guarded affect, and confrontational and impulsive yet cooperative behavior. T 473. He discussed an instance where he lost his temper with his children and was encouraged to identify aggravating situations early, before growing too agitated to handle them appropriately. T 474. His mood and clinical observations were unchanged at a follow up visit on October 15, 2013. T 471. His wife attended the session and discussed that Plaintiff’s constant pain is a difficult factor for him to deal with and exacerbates his anger. T 472. He was encouraged to find a way to self-calm by briefly walking away from situations causing anger before reacting. T 472. On October 28, 2013, Debra L. Ride, LSCW, completed a narrative stating Plaintiff was assessed with generalized anxiety disorder and depressive disorder, NOS, and he is encouraged to continue therapy until he is no longer anxious and depressed and develops appropriate coping skills. T 470. On May 29, 2014, Dr. Armstrong completed a mental capacity assessment regarding Plaintiff’s limitations. T 586. In understanding and memory, he opined Plaintiff has marked limitations in ability to remember locations and work-like procedures, and to understand and remember very short and simple instructions; he is moderately limited in ability to understand and remember detailed instructions. T 586. In sustained concentration and persistence, he opined Plaintiff is extremely limited in ability to perform at a consistent pace with a standard and number and length of rest periods, and markedly limited in ability to: carry out very short and simple instructions; sustain an ordinary routine without special supervision; work in coordination with or in proximity to others without being distracted by 12 PageID #: 674 them; and to complete a normal workweek without interruptions from psychologically based symptoms. T 586-87. He opined Plaintiff is moderately limited in ability to: carry out detailed instructions; maintain attention and concentration for extended periods; make simple work-related decisions; and to complete a normal workday without interruptions from psychological based symptoms. T 586-87. In social interaction, he opined Plaintiff is markedly limited in ability to interact with the general public, and moderately limited in ability to: ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. T 587. He opined Plaintiff is moderately limited in adaption skills, including the following abilities: respond appropriately to changes in the work setting; be aware of normal hazards and take appropriate precautions; travel in unfamiliar places or use public transportation; and to set realistic goals or make plans independently of others. T 588. CONTENTIONS Pursuant to 42 U.S.C. §§ 405(g), 1383(c), this Court may review the record to determine whether the Commissioner applied the proper legal standards and whether substantial evidence supports the Commissioner’s final decision to deny the Plaintiff benefits. "Substantial evidence is less than preponderance but is enough that a reasonable mind would find it adequate to support the [Commissioner’s] conclusion." Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008) (internal quotation marks and citations omitted). The court must take into account evidence that detracts from the Commissioner’s decision, as well as 13 PageID #: 675 evidence that supports the decision. Id. (citing Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th Cir. 2004)). To be considered disabled under the Social Security Act, an individual must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The individual’s impairment(s) must be of such severity that she is not only unable to do her previous work but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(3). The Social Security Administration utilizes a five-step sequential evaluation process for use in making disability determinations set forth in 20 C.F.R. §§ 404.1520, 416.920. 1. The ALJ erred by failing to properly evaluate the limitations opined by consultative examiner Dr. Brownfield, according the opinion "great weight" but failing to adopt or explain the rejection of her opined limitations. "If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Social Security Ruling, 96–8p (July 2, 1996). Initial determinations of fact and credibility must be set out in the Agency decision, because the court "cannot speculate whether or why an ALJ rejected certain evidence." Jones v. Chater, 65 F.3d 102, 104 (8th Cir. 1995). Thus, where the ALJ failed to explain why probative evidence was rejected, such "unresolved conflicts of evidence can serve as a basis for remand." Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005). 14 PageID #: 676 Here, the ALJ decision contains an irreconcilable conflict that warrants remand. The ALJ indicated that he accorded "great weight" and therefore relied upon the opinion of Dr. Brownfield in formulating the RFC. T 31. The ALJ noted that she conducted "a thorough in-person physical examination of the claimant and her opinions are otherwise consistent with the claimant’s objective medical records." T 31. However, the ALJ erroneously states that Dr. Brownfield did not "delve into the extent to which" Plaintiff is limited in ability to stand, walk, kneel, lift, and stoop. T 31. In fact, Dr. Brownfield’s opinion was clear: Plaintiff has a moderate/severe limitation for standing, walking, kneeling, lifting, stooping. T 513. Even absent a quantification of the specific amount of time Plaintiff is able to perform these activities, a moderate to severe limitation sufficiently describes the extent to which Plaintiff is limited. The ALJ’s failure to discuss the degree of limitation Dr. Brownfield identified is harmful error. The ALJ found her examination and opinion highly credible and entitled to significant evidentiary weight, but failed to adopt her opinion or explain why it was discounted. However, this opinion is irreconcilable with the RFC determination for light work, which requires standing and walking for up to 6 hours total in an 8-hour workday, and occasional lifting and carrying of up to 20 pounds. 20 CFR 404.1567(b). This level of exertion is not possible with the moderate/severe impairments in standing, walking, and lifting identified by Dr. Brownfield. The conflict between the RFC and Dr. Brownfield’s opinion, which the ALJ acknowledged to be probative in this case, cannot be resolved, and warrants remand for proper determination of Plaintiff’s maximum RFC. SSR 96-8p; Draper, 425 F.3d at 1130. 15 PageID #: 677 2. The ALJ erred by according inadequate weight to Claimant’s primary care physician Dr. Armstrong, thereby failing to support the determination by substantial evidence. The ALJ wholly rejected Dr. Armstrong’s opinion of Plaintiff’s physical limitations, concluding his opinions "are too extreme to be credible." T 32. However, the ALJ’s basis in rejecting this opinion is without support; the ALJ "played doctor" by improperly substituting his own opinion in place of the physician’s medical opinion evidence, and further improperly relied upon only parts of the record that were favorable to a finding of non-disability. Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990) (holding the "ALJ must not substitute his opinions for those of the physician"); Pate-Fires v. Astrue, 564 F3d 935, 946-47 (8th Cir. 2009) (noting that the ALJ "playing doctor" is a practice forbidden by law) (citing Rohan v. Chater, 98 F.3d 966 (7th Cir. 1996)); Taylor v. Barnhart, 333 F. Supp. 2d 846, 856 (8th Cir. 2004) (holding an ALJ cannot pick and choose only evidence in the record buttressing her conclusion). As Dr. Armstrong’s opinion was highly supported by the evidence of record, and the ALJ failed to point to any evidence which contradicts the opined limitations, this matter should be remanded so Dr. Armstrong’s opinion may be afforded significant, if not controlling, weight. Pursuant to the treating physician rule, the medical opinion of the physician engaged in the primary treatment of an individual is given "controlling weight" if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. 20 C.F.R. § 416.927; Prosch v. Apfel, 201 F.3d 1010, 1013-14 (8th Cir. 2000). 16 PageID #: 678 Even if a treating physician’s opinion is not given "controlling weight," it is still entitled to deference, and the ALJ must assess the following factors to determine how much weight to afford the opinion: the length of the treatment relationship, the frequency of examination by the treating physician, the medical evidence supporting the opinion with the record as a whole, the qualifications of the treating physician, and other factors tending to support or contradict the opinion. 20 C.F.R. §§ 404.1527; 416.927(c)(2). "The notice of the determination or decision must contain specific reasons for the weight given to the treating source’s medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons for that weight." SSR 96-2p (emphasis added). Where the ALJ fails to meet this standard, the case must be remanded. See Liles-Lawyer v. Astrue, 2012 U.S. Dist. LEXIS 16754, 174 Soc. Sec. Rep. Service 444, 2012 WL 443511 (W.D. Ark. 2012) (Remanding where "the record [did] not contain other medical assessments which are supported by better or more thorough medical evidence as required by SSR 96-2p[] in order to disregard a treating physician's opinion.) Dr. Armstrong’s physical functional capacity assessment (outlined in the statement of facts at page 8 supra) indicates that Plaintiff is significantly more functionally limited than the ALJ’s determined RFC. Despite the high standard of deference that regulations accord to treating physician opinions, the ALJ gave only two vague reasons for discounting Dr. Armstrong’s entire assessment: 1) the opinion is too extreme, and 2) the physician discussed his assessed limitations with the Plaintiff. However, these reasons are not supported by the record and should be rejected. 17 PageID #: 679 First, the ALJ failed to support his own layman’s assessment that Dr. Armstrong’s opinion is "too extreme to be credible." T 32. He neither identified what was too extreme about the opinion nor pointed to any evidence of record which contradicts the opinion. Not only did the ALJ fail to support the conclusion with sufficient specificity, but he failed to acknowledge that there is, in fact, significant evidence in the record which supports the opined limitations. The ALJ’s failure to evaluate the opinion for its consistency with the evidence of record is legal error in itself, as the regulatory factors require the ALJ to do so. 20 C.F.R. §§ 404.1527; 416.927(c)(2). The ALJ’s error is harmful, because the record is highly consistent with Dr. Armstrong’s opinion, which entitles the opinion to greater weight. Dr. Blankenship, a specialist at Neurosurgery Spine Center, noted that Plaintiff has "quite possibly the worst-looking spine I have seen in an early fifties gentleman." T 399. Dr. Blankenship found Plaintiff’s complaints of severe pain highly consistent with the severity of his spine impairment, and was surprised that his pain was not persistently even worse than described. T 399. Additionally, Dr. Armstrong’s opinion is consistent with Dr. Brownfield’s opinion of moderate/severe limitations standing, walking, and lifting, which the ALJ failed to acknowledge. Finally, Dr. Armstrong’s opinion is supported by the objective clinical findings, as the record includes documentation of two left knee surgeries, physical therapy, and pain management with injections and medication to try to control Plaintiff’s symptoms. Therefore, as Dr. Armstrong’s opinion is supported by and consistent with the record, and the ALJ failed to support his rejection of this opinion, it should have been accorded great or controlling weight. 20 C.F.R. §§ 404.1527; 416.927(c)(2). The only other reason that the ALJ provided for rejecting Dr. Armstrong’s opinion is 18 PageID #: 680 that Plaintiff reported the physician discussed the limitations with him. T 32. However, Plaintiff only acknowledged that Dr. Armstrong discussed the limitations with him, his testimony in no way implied that the limitations were not based upon Dr. Armstrong’s independent medical assessments. T 67-68. The physician’s decision to discuss the form or explain what he thought does not lessen the credibility of the assessment; any conclusion that Dr. Armstrong’s assessment was not independent is purely speculation. This speculation cannot constitute a good reason for rejecting a treating physician’s opinion. In sum, the ALJ erred in evaluating Dr. Armstrong’s opinion, and he did not provide sufficient reasons for rejecting his assessments. The only reasons provided for rejecting the opinion were nothing more than conjecture, which does not constitute substantial evidence. This matter should be remanded so Dr. Armstrong’s opinion may be accorded more significant, if not controlling, weight, and the opinion’s impact on Plaintiff’s RFC may be properly assessed. 3. The ALJ’s Step 5 determination is unsupported by substantial evidence. The ALJ relied on VE testimony to find at Step 5 that there were jobs that existed in significant numbers in the national economy Plaintiff could perform. T 33-34. However, the VE’s testimony is unreliable because the hypothetical question which formed the basis of the testimony was an incomplete portrayal of Plaintiff’s limitations. "In fashioning an appropriate hypothetical question for a vocational expert, the ALJ is required to include all the claimant’s impairments supported by substantial evidence in the record as a whole." Finch, 547 F.3d at 937. "[V]ocational testimony elicited by hypothetical questions that fail to relate with precision the physical and mental impairments of the 19 PageID #: 681 claimant cannot constitute substantial evidence to support the Secretary’s decision." Ness v. Sullivan, 904 F.2d 432, 436 (8th Cir. 1990) (quotations and citation omitted); see 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). Here, as the ALJ failed to reconcile the RFC with the opinion from Dr. Brownfield, and improperly rejected the treating physician’s medical opinion evidence, the RFC determination and corresponding hypothetical question to the vocational expert are not supported by the evidence of record. Thus, the ALJ’s Step 5 determination is unsupported by substantial evidence as it failed to consider all of Plaintiff’s limitations. Accordingly, this matter should be remanded for a complete hypothetical question asked to a VE. CONCLUSION For the foregoing reasons, it is respectfully requested that the Plaintiff’s motion for judgment on the pleadings be granted, that the Commissioner’s decision be vacated and that this matter be remanded for further administrative proceedings. Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky, Esq. Attorney for Plaintiff Olinsky Law Group One Park Place 300 South State St., Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Email:holinsky@windisability.com 20

Certificate of Service

PageID #: 682 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS KEVIN KENT BEEMAN, Plaintiff, CIVIL ACTION NO. 3:16-cv-03124 (MEF)-v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------CERTIFICATE OF SERVICE This is to certify that I have this day served Counsel for the Defendant with Plaintiff’s Memorandum of Law in support of a Social Security Appeal by electronically filing the foregoing with the Clerk of the Court by using the CM/ECF system which will send electronic notification of such filing to: Michelle M. Montemayor Special Assistant United States Attorney Texas Bar No. 14763960 Office of the General Counsel, SSA 1301 Young Street, Suite A-702 Dallas, Texas 75202 Phone: (214) 767.5589 Facsimile: (214) 767.4473 Email: michelle.montemayor@ssa.gov This 19th day of April, 2017/s/Howard D. Olinsky Howard D. Olinsky, Esq. Attorney for Plaintiff Olinsky Law Group One Park Place 300 South State St., Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Email:holinsky@windisability.com

APPEAL BRIEF (SOCIAL SECURITY) by Social Security Administration Commissioner.

PageID #: 683 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION KEVIN KENT BEEMAN, § § Plaintiff, § § v. § Civil No.: 3:16-cv-03124-MEF § NANCY A. BERRYHILL, § Acting Commissioner, § Social Security Administration, 1/§ § Defendant. § DEFENDANT’S APPEAL BRIEF Pursuant to 42 U.S.C. § 405(g), Kevin Kent Beeman (Plaintiff) brought this action for judicial review of the final decision of Defendant, the Acting Commissioner of Social Security (Commissioner), denying Plaintiff’s claim for disability insurance benefits and a period of disability (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act (Act), through November 30, 2015, the date of the ALJ’s decision. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). The Commissioner submits that substantial evidence of record supports her decision, and therefore respectfully requests that the Court affirm her final administrative decision. 1/Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 1 PageID #: 684 I. ISSUES PRESENTED The general issue is whether substantial evidence and relevant legal precedent support the Commissioner’s final decision that Plaintiff was not disabled within the meaning of the Act from September 26, 2013, Plaintiff’s alleged disability onset date, through November 30, 2015, the date of the Commissioner’s decision. Plaintiff states the issues as: (1) whether the administrative law judge (ALJ) failed to properly evaluate the opinion of Shannon Brownfield, M.D.; (2) whether the ALJ erred in assessing Plaintiff’s residual functional capacity (RFC) by giving the opinion of Victor Armstrong, D.O., inadequate weight; and (3) whether substantial evidence supports the ALJ’s step five finding. See Plaintiff’s Brief (Pl.’s Br.) at 14-20. II. STATEMENT OF THE CASE 2/On December 13, 2013, Plaintiff protectively filed applications for DIB and SSI, alleging disability since September 26, 2013, due to back problems, degenerative disc disease, scoliosis, arthritis, knee problems, depression, and anxiety (Certified Administrative Transcript (Tr.) 19, 219-26, 253, 288). The Commissioner denied Plaintiff’s applications initially and on reconsideration (Tr. 19, 71-144, 147-61). On September 16, 2015, the ALJ held a hearing at which Plaintiff testified while represented by his attorney, Bradford D. Myler (Tr. 19, 41-70). Plaintiff was 52-54 years old during the relevant time, had a high school education, and had past relevant work as a bail bondsman, delivery truck driver, radio sales representative, and radio 2/The Court ordered on March 27, 2017, for "the parties to identify the transcript page numbers of any duplicative and/or irrelevant medical records in their Social Security appeal briefs." Pursuant to this order, the Commissioner reviewed the transcript in good faith and states that it appears that the transcript does not contain any duplicate medical records. 2 PageID #: 685 director (Tr. 33, 298, 309-16, 370). On November 30, 2015, the ALJ issued an unfavorable decision (Tr. 19-34). Pursuant to the five-step sequential evaluation found at 20 C.F.R. §§ 404.1520, 416.920, 3/the ALJ found that Plaintiff had severe impairments of degenerative disc disease, osteoarthritis, diabetes mellitus, hypertension, obesity, sleep apnea, anxiety, and affective disorder (Tr. 22). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the criteria of listed impairments in the Social Security Administration’s regulations (regulations) for presumptive disability (Tr. 22). The ALJ found that Plaintiff had the RFC to perform light work with additional limitations (Tr. 26). At step four, the ALJ found that Plaintiff could not perform his past relevant work (Tr. 32). At step five with the assistance of a vocational expert, the ALJ found that Plaintiff could perform other work that existed in significant numbers in the national economy such as a merchandise maker, content inspector, and shipping weigher (Tr. 34, 371-72). As a result, the ALJ found that Plaintiff was not under a disability from December 31, 2009, through July 31, 2012(Tr. 25-26). The ALJ’s decision became the Commissioner’s final decision when the Appeals Council denied Plaintiff’s request for review (Tr. 1-6). See 42 U.S.C. § 405(g). 3/The Social Security Administration’s regulations set out the five-step "sequential evaluation" process for determining disability. The steps are as follows: (1) is the claimant currently performing substantial gainful activity? (2) does the claimant have a severe impairment? (3) does the impairment meet or equal an impairment listed in Appendix 1? (4) does the impairment prevent the claimant from performing past relevant work? (5) does the impairment prevent the claimant from performing any other work? 20 C.F.R. §§ 404.1520, 416.920. 3 PageID #: 686 III. ARGUMENT 4/A. Standard of Review The role of the Court under 42 U.S.C. § 405(g) is to determine whether there is substantial evidence in the record to support the decision of the Commissioner, and not to reweigh the evidence or try the issues de novo. See Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). If substantial evidence supports the Commissioner’s findings, the Court should affirm them. See Richardson v. Perales, 402 U.S. 389, 390 (1971). Substantial evidence is more than a scintilla, but less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 401. The Court may not reverse a prior determination based only on a finding that substantial evidence would support an opposite decision. See Prosch, 201 F.3d at 1012. Consequently, the Court’s review of this case is limited and deferential to the Commissioner. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). B. Burden of Proof Plaintiff has the burden of proving his disability by establishing a physical or mental impairment lasting at least 12 consecutive months that prevents him from engaging in any substantial gainful activity. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); Barnhart v. Walton, 535 U.S. 212, 214-22 (2002); Ingram v. Chater, 107 F.3d 598, 601 (8th Cir. 1997). 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 4/Plaintiff does not make any arguments regarding his alleged mental impairments, so the Commissioner does not address mental impairment in her brief. See Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007) (plaintiff waives points not meaningfully argued in an opening brief). 4 PageID #: 687 clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). Plaintiff has the burden of proof through the first four steps of the sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 142 (1987). Although the burden of production shifts to the Commissioner at step five, the ultimate burden of persuasion remains with the claimant. Charles v. Barnhart, 375 F.3d 777, 782 n.5 (8th Cir. 2004); Cruze v. Chater, 85 F.3d 1320, 1322 (8th Cir. 1996). C. The ALJ Properly Evaluated Dr. Brownfield’s Opinion The ALJ noted that Dr. Brownfield performed a consultative examination of Plaintiff in April 2014 (Tr. 29, 509-14). As the ALJ observed, Dr. Brownfield documented that Plaintiff had normal clinical examination results, except for reduced lumbar spine flexion and knee flexion (Tr. 29, 511-12). See McGeorge v. Barnhart, 321 F.3d 766, 768 (8th Cir. 2003) (examination showed good muscle strength and full ranges of motion that is consistent with a light work finding). Dr. Brownfield noted that Plaintiff could walk and stand without an assistive device, walk on his heels and toes, and squat and arise from squatting with some pain (Tr. 29, 512). Dr. Brownfield diagnosed Plaintiff with lower back pain, bilateral knee pain, and obesity (Tr. 29, 513). The ALJ gave "great weight" to Dr. Brownfield’s opinion because she "conducted a thorough in-person physical examination," and her opinions were "otherwise consistent with the claimant’s objective medical records" (Tr. 31). Plaintiff argues that the ALJ erred when he did not discuss Dr. Brownfield’s opinion that Plaintiff had moderate to severe limitations for standing, walking, kneeling, lifting, and stooping. See Pl.’s Br. at 15. However, the ALJ thoroughly discussed the specific clinical examination findings that Dr. Brownfield documented, as discussed above (Tr. 29, 509-14). The ALJ properly observed that "Dr. Brownfield opined that the claimant has limitations in his ability to 5 PageID #: 688 stand, walk, kneel, lift, and stoop, but did not delve into the extent to which the claimant is limited in these areas" (Tr. 31). In essence, the ALJ properly observed that Dr. Brownfield did not mention specific limitations for each of these activities (Tr. 31). Nonetheless, the ALJ properly looked to the clinical examination findings in Dr. Brownfield’s report and the other evidence in the record to make a well-reasoned RFC finding that Plaintiff was limited to light work with occasional climbing, balancing, crawling, kneeling, stooping, and crouching (Tr. 26). Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying objects up to 10 pounds, and although the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. §§ 404.1567(b), 416.967(b); Social Security Ruling (SSR) 83-10, 1983 WL 31251, at *5. The ALJ’s RFC finding is consistent with all the evidence of record and does not present a conflict with Dr. Brownfield’s opinion, contrary to Plaintiff’s argument. See Pl.’s Br. at 15. Therefore, the Court should affirm the ALJ’s RFC finding. D. Substantial Evidence Supports the ALJ’s Physical RFC determination Before an ALJ decides whether a claimant is disabled, the ALJ must determine what the claimant could do in a work setting despite his limitations. See Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002); 20 C.F.R. §§ 404.1520(e), 404.1545, 416.920(e), 416.945. The determination of an RFC is an administrative assessment reserved solely to the ALJ, based on the totality of the evidence, including the medical records, observations by treating physicians and others, and a claimant’s own description of the limitations. See Krogmeier, 294 F.3d at 1023-24; 20 C.F.R. §§ 404.1527(e)(2), 404.1546, 416.927(e)(2), 416.946; SSR 96-5p, 1996 WL 374183, *2; SSR 96-8p, 1996 WL 374184, *2. 6 PageID #: 689 Here, the ALJ found that Plaintiff had the RFC to perform light work with occasional climbing, balancing, crawling, kneeling, stooping, and crouching (Tr. 26). The ALJ fully considered the medical evidence of record as shown by his discussion (Tr. 22-32). Substantial evidence supports the ALJ’s RFC finding. The ALJ observed that prior to the alleged onset date of September 26, 2013, Plaintiff underwent lumbar epidural injections and physical therapy for his lumbar spine that "were unsuccessful in mitigating" Plaintiff’s pain (Tr. 29, 53, 390-91). The ALJ also noted that Plaintiff’s treatment history before the relevant time showed that he had a magnetic resonance imaging (MRI) of his knees, which revealed that he had multiple ligament tears and he underwent corrective surgery (Tr. 28-29, 436-37, 439, 444-45, 495-96, 499). However, the ALJ observed that Plaintiff’s treatment notes after the alleged onset date revealed that Plaintiff’s symptoms improved (Tr. 29). In April 2014, Dr. Brownfield observed that Plaintiff "had normal range of motion in the cervical spine, hips, and ankles but could only perform lumbar spine flexion up to 45 degrees as well as flexion up to 105 degrees" (Tr. 29, 511). Dr. Brownfield noted that Plaintiff could walk and stand without an assistive devices, walk on his heels and toes, and squat and arise from squatting with some pain (Tr. 29, 512). During the same month, Dr. Armstrong, Plaintiff’s primary care physician, noted that Plaintiff reported that "his weight loss has really helped how he feels" and that his "back is a little better but very sore at times" (Tr. 29, 499). Dr. Armstrong observed that Plaintiff had a normal gait and that Plaintiff should continue with weight loss (Tr. 29, 499). Mark W. Powell, M.D., a specialist with Advance Orthopedic Specialists, performed a physical examination during which he observed that Plaintiff "did not exhibit signs of pain or tenderness to palpation along the lateral joint line, calf, and patellar tendon" and negative 7 PageID #: 690 Homan’s signs and Lachman’s test (Tr. 29, 521). Dr. Powell noted that x-rays showed mild lateral joint line narrowing, mild medical joint line narrowing on the right, and a lateral view of the left knee was normal (Tr. 29, 521). Dr. Armstrong diagnosed Plaintiff with left knee internal derangement and Plaintiff elected surgery as treatment (Tr. 29, 522). In April 2014, Dr. Powell observed that Plaintiff was well nourished and developed "in no acute distress" and had a normal gait (Tr. 29, 456). In May 2014, Plaintiff had no problems or complaints, was doing well in physical therapy, and only took Tylenol for pain (Tr. 29, 519). In May 2014, Dr. Powell performed an arthroscopy of Plaintiff’s knee (Tr. 29, 606). After surgery, Plaintiff attended physical therapy that showed mostly normal clinical examination finding with an antalgic gait (Tr. 29, 515-16). In June 2014, Dr. Armstrong documented a normal clinical examination (Tr. 29, 574-76). In August 2014, Dr. Armstrong observed that Plaintiff had a normal gait and documented no abnormalities after examination regarding Plaintiff’s back and knees (Tr. 29, 578). In February 2015, Plaintiff reported "significantly decreased" pain after an injection in his knee in January 2015 (Tr. 29, 606). The ALJ observed that clinical examinations by Plaintiff’s medical providers frequently showed normal clinical examination results (Tr. 29). See McGeorge, 321 F.3d at 768 (examination showed good muscle strength and full ranges of motion that is consistent with a light work finding). In addition, Dr. Armstrong prescribed exercise for Plaintiff three times a week, including walking on a treadmill at home (Tr. 29, 454, 606). In May 2014, Dr. Armstrong completed an RFC checklist questionnaire for Plaintiff (Tr. 32, 589-91). Dr. Armstrong opined that Plaintiff could only sit for 5 minutes at a time and for 1 hours in an 8-hour workday; could stand or walk 5 minutes at a time and for 1 hour total in an 8-hour workday; could never lift more than 10 pounds; and would be absent more than 4 times a 8 PageID #: 691 month (Tr. 32, 589-91). However, the ALJ properly found that Dr. Armstrong’s opinions were "too extreme to be credible and that the claimant testified that Dr. Armstrong made his determinations during a session in which he discussed his assessed limitations with claimant" (Tr. 32, 67). The ALJ found that the evidence in the record did not support Dr. Armstrong’s opined limitations (Tr. 32). The evidence discussed above does not support Dr. Armstrong’s opinion. Moreover, contrary to Plaintiff’s argument, the ALJ may consider evidence that a doctor based his opinions upon Plaintiff’s subjective limitations rather than clinical examination evidence (Tr. 32, 67). See Teague v. Astrue, 638 F.3d 611, 615-16 (8th Cir. 2011) (ALJ may consider that doctor’s opinion based on claimant’s subjective complaints). An ALJ can assign less weight to a treating physician’s opinion when it is not sufficiently supported by medically acceptable clinical and diagnostic data. Trossauer v. Chater, 121 F.3d 341, 353 (8th Cir. 1997). The ALJ discussed at length the examination notes by treating specialist Dr. Powell and Dr. Brownfield, which reflected mostly normal clinical examination findings and supported the ALJ’s light RFC finding (Tr. 27-32). These records do not support Dr. Armstrong’s opinion of "extreme" limitations (Tr. 32). Contrary to Plaintiff’s argument, Dr. Armstrong’s opinion was inconsistent with Dr. Brownfield’s opinion, who opined that Plaintiff had "moderate" limitations. See Pl.’s Br. at 18. An ALJ may consider that a doctor’s statement was conclusory and inconsistent with the medical evidence of record. See Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003) (a conclusory statement not supported by medical diagnoses based on objective evidence will not support a finding of disability); see also Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (an ALJ may reject the opinion of any medical expert where it is inconsistent with the medical record as a whole). Therefore, Plaintiff’s argument that the ALJ improperly rejected Dr. Armstrong’s opinion is without merit. See Pl.’s Br. at 16-14. 9 PageID #: 692 Plaintiff cites to Dr. Blankenship, who stated in May 2013, that Plaintiff had "quiet possibly the worst-looking spine I have seen in an early fifties gentleman," as support for his argument that Dr. Armstrong’s opinion was supported. See Pl.’s Br. at 18. However, Dr. Blankenship noted that the May 2013 visit was Plaintiff’s first visit for treatment of back pain and that he was surprised that he had not been worse that he had been (Tr. 399). Moreover, Dr. Blankenship’s examination was normal except for some restricted flexion due to pain, and Dr. Blankenship told Plaintiff that he would improve with weight loss, prescribing an exercise plan (Tr. 29. 394-96). Therefore, Dr. Blankenship’s examination records do not support Dr. Armstrong’s marked or extreme limitations. E. The Commissioner Properly Met Her Burden at Step Five Plaintiff argues that the hypothetical question to the vocational expert was not supported because the ALJ "failed to reconcile the RFC with the opinion from Dr. Brownfield" and "improperly rejected the treating physician’s medical opinion evidence." See Pl.’s Br. at 19-20. Plaintiff is incorrect. As discussed above, substantial evidence supports the ALJ’s RFC finding; therefore, the hypothetical question containing the same limitations is supported by the record (Tr. 26, 371-72). Testimony from a vocational expert based on a properly phrased hypothetical question constitutes substantial evidence. Howard v. Massanari, 255 F.3d 577, 581-582 (8th Cir. 2001). The ALJ may omit alleged impairments from a hypothetical question to the vocational expert where there is no medical evidence that the condition imposes any restrictions on the claimant’s functional capabilities. Owen v. Astrue, 551 F.3d 792, 799 (8th Cir. 2008). Accordingly, Plaintiff’s argument is without merit because the record contained no conflict. 10 PageID #: 693 F. An Award of Benefits is Inappropriate Plaintiff’s final argument that this case should be remanded for payment of benefits is without merit. See Pl.’s Br. at 20. Plaintiff failed to prove that he was disabled, as set forth above, so the Court should dismiss this complaint. In the alternative and without waiving the foregoing arguments, the Commissioner submits that a remand for benefits is unwarranted. Reversal and remand for an immediate award of benefits is the appropriate remedy only where the record "overwhelmingly supports" a finding of disability. Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000); Taylor v. Chater, 118 F.3d 1274, 1279 (8th Cir. 1997); see also Pates-Fires v. Astrue, 564 F.3d 935, 947 (8th Cir. 2009)(the "clear weight of the evidence fully supports a determination that [the claimant] is disabled within the meaning of the Social Security Act and is entitled to benefits"). Because the record does not overwhelmingly support a finding of disability, a remand for an immediate award of benefits is not an appropriate remedy. 11 PageID #: 694 IV. CONCLUSION Substantial evidence of record supports the Commissioner’s decision that Plaintiff was not disabled within the meaning of the Act, and the ALJ’s decision comports with relevant legal standards. Thus, the Commissioner respectfully requests that this Court affirm the ALJ’s decision denying Plaintiff’s applications for benefits through November 30, 2015. and dismiss Plaintiff’s Complaint. Respectfully submitted, KENNETH P. ELSER UNITED STATES ATTORNEY By:/s/Michelle M. Montemayor Michelle M. Montemayor Special Assistant U.S. Attorney Attorney-in-Charge Texas Bar # 14763960 1301 Young Street, Suite A-702 Dallas, Texas 75202-5433 (214) 767-5589 Telephone (214) 767-4473 Facsimile michelle.montemayor@ssa.gov CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was electronically transmitted on May 19, 2017, to the Clerk of the District Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrant: Howard D. Olinsky./s/Michelle M. Montemayor Michelle M. Montemayor Special Assistant United States Attorney 12

Joint MOTION to Waive Oral Argument by Kevin Kent Beeman.

PageID #: 695 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS KEVIN KENT BEEMAN, Plaintiff, CIVIL ACTION NO. 3:16-cv-03124 (MEF)-v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------JOINT MOTION TO WAIVE ORAL ARGUMENT Plaintiff, by and through his counsel, Mr. Howard Olinsky of Olinsky Law Group, and the Defendant, through her counsel, Ms. Michelle Montemayor, Special Assistant United States Attorney, jointly move this Court to waive the oral argument scheduled for November 27, 2017, at 1:00 p.m. Counsel for both parties have conferred and agreed to rest on the merits of the briefs on this matter. Defendant’s counsel has given the undersigned consent to electronically file this joint motion. Respectfully Submitted,/s/Howard D. Olinsky/s/Michelle M. Montemayor Howard D. Olinsky, Esq. Michelle M. Montemayor Attorney for Plaintiff Special Assistant U.S. Attorney Olinsky Law Group Attorney-in-Charge One Park Place Texas Bar # 14763960 300 South State St., Suite 420 1301 Young Street, Suite A-702 Dallas, Texas 75202-5433 Syracuse, New York 13202 (214) 767-5589 Telephone Telephone: (315) 701-5780 (214) 767-4473 Facsimile Email:holinsky@windisability.com michelle.montemayor@ssa.gov 1

Minute Entry for proceedings held before Honorable Mark E. Ford: Social Security Hearing held on 11/27/2017. (Debbie Maddox-Digital Recorder) (Proceedings held in Fort Smith-Room 226)

PageID #: 696 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION KEVIN KENT BEEMAN, Plaintiff Attorney: Howard D. Olinsky NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant Attorney: Michelle M. Montemayor Judge: Honorable Mark E. Ford United States Magistrate Judge Law Clerk: Michelle Merrill Reporter: Debbie Maddox, Digital Recorder Clerk: Debbie Maddox Case No.: 3:16-cv-03124 Date: November 27, 2017 Action: Social Security Hearing MINUTES 12:59 p.m. Convene Attorney, Howard D. Olinsky, on behalf of Plaintiff; Attorney, Michelle M. Montemayor, on behalf of Defendant. Counsel for both parties waived Oral Argument, and the Court proceeds to announce its ruling. COURT’S RULING: ISSUE 1: Whether the ALJ erred by failing to properly evaluate the limitations opined by consultative examiner Dr. Brownfield, according the opinion "great weight" but failing to adopt or explain the rejection of his opined limitations Plaintiff contends the ALJ’s decision contains an irreconcilable conflict that warrants remand, as the ALJ indicated he afforded "great weight" to the opinion of Dr. Brownfield, but he-1-PageID #: 697 failed to discuss Dr. Brownfield’s opinion that Plaintiff had moderate to severe impairments in standing, walking and lifting that would preclude him from light work. The ALJ noted that Dr. Brownfield performed a consultative examination of Plaintiff in 2014 and documented that Plaintiff had normal clinical examination results, except for reduced lumbar spine flexion and knee flexion. Dr. Brownfield noted that Plaintiff could walk and stand without an assistive device, walk on his heels and toes, and squat and arise from squatting with some pain. Dr. Brownfield diagnosed Plaintiff with lower back pain, bilateral knee pain, and obesity. The Court finds the ALJ properly observed that Dr. Brownfield did not mention specific limitations in Plaintiff’s ability to stand, walk, kneel, lift and stoop, and looked to the clinical examination findings in Dr. Brownfield’s report and the other evidence in the record to make a well-reasoned RFC finding that Plaintiff was limited to light work with occasional climbing, balancing, crawling, kneeling, stooping and crouching. Accordingly, the Court affirms the Commissioner on this issue. ISSUE 2: Whether the ALJ erred by according inadequate weight to Claimant’s primary care physician, Dr. Armstrong, thereby failing to support the RFC determination by substantial evidence The ALJ discounted Dr. Armstrong’s opinions, finding them too extreme and due to the fact that Dr. Armstrong discussed his assessed limitations with Plaintiff. Plaintiff contends these reasons are not supported by the record and the record is highly consistent with Dr. Armstrong’s opinions. The ALJ observed that prior to the alleged onset date of September 26, 2013, Plaintiff underwent lumbar epidural injections and physical therapy for his lumbar spine that "were unsuccessful in mitigating" Plaintiff’s pain. The ALJ also noted that Plaintiff’s treatment history before the relevant time showed that he had an MRI of his knees, which revealed that he had multiple ligament tears and he underwent corrective surgery. The ALJ observed, however, that Plaintiff’s treatment notes after the alleged onset date revealed that Plaintiff’s symptoms improved. In April 2014, Dr. Brownfield observed that Plaintiff had normal range of motion in the cervical spine, hips, and ankles but could only perform lumbar spine flexion up to 45 degrees as well as flexion up to 105 degrees. Dr. Brownfield noted that Plaintiff could walk and stand without an assistive device, walk on his heels and toes, and squat and arise from squatting with some pain. During the same month, Dr. Armstrong, Plaintiff’s primary care physician, noted that Plaintiff reported that "his weight loss has really helped how he feels," and that his "back is a little-2-PageID #: 698 better but very sore at times." Dr. Armstrong observed that Plaintiff had a normal gait and that Plaintiff should continue with weight loss. Mark W. Powell, M.D., a specialist with Advance Orthopedic Specialists, performed a physical examination during which he observed that Plaintiff "did not exhibit signs of pain or tenderness to palpation along the lateral joint line, calf, and patellar tendon," and had negative Homan’s signs and Lachman’s test. Dr. Powell noted that x-rays showed mild lateral joint line narrowing, mild medial joint line narrowing on the right, and a lateral view of the left knee was normal. Dr. Armstrong diagnosed Plaintiff with left knee internal derangement and Plaintiff elected surgery as treatment. In April 2014, Dr. Powell observed that Plaintiff was well nourished and developed, "in no acute distress," and had a normal gait. In May 2014, Plaintiff had no problems or complaints, was doing well in physical therapy, and only took Tylenol for pain. In May 2014, Dr. Powell performed an arthroscopy of Plaintiff’s knee. After surgery, Plaintiff attended physical therapy that showed mostly normal clinical examination finding with an antalgic gait. In June 2014, Dr. Armstrong documented a normal clinical exam, and in August 2014, he observed that Plaintiff had a normal gait and documented no abnormalities after exam regarding Plaintiff’s back and knees. In February 2015, Plaintiff reported "significantly decreased" pain after an injection in his knee in January 2015. The ALJ observed that clinical exams by Plaintiff’s medical providers frequently showed normal clinical exam results. In addition, Dr. Armstrong prescribed exercise for Plaintiff three times a week, including walking on a treadmill at home. In May 2014, Dr. Armstrong completed an RFC checklist questionnaire for Plaintiff and opined that Plaintiff could only sit for five minutes at a time and for one hour in an eight-hour workday; could stand or walk only five minutes at a time and for one hour in an eight-hour workday; could never lift more than 10 pounds; and, would be absent more than four times a month. The ALJ properly found that Dr. Armstrong’s opinions were too extreme to be credible, and that claimant testified Dr. Armstrong made his determinations during a session in which he discussed his assessed limitations with claimant. The ALJ properly found that the evidence in the record did not support these limitations, and the ALJ may also consider evidence that a doctor based his opinions on a claimant’s subjective limitations rather than clinical examination evidence.-3-PageID #: 699 The ALJ discussed at length the exam notes by treating specialist Dr. Powell and Dr. Brownfield, which reflected mostly normal clinical exam findings and supported the ALJ’s light RFC finding. These records do not support Dr. Armstrong’s opinion of "extreme" limitations. Dr. Armstrong’s opinion was inconsistent with Dr. Brownfield’s opinion, who opined that Plaintiff had only "moderate" limitations. Dr. Blankenship noted that the May 2013 visit was Plaintiff’s first visit for treatment of back pain, and that he was surprised that he had not been worse than he had been. Dr. Blankenship’s examination was normal except for some restricted flexion due to pain, and Dr. Blankenship told Plaintiff that he would improve with weight loss, prescribing an exercise plan. Dr. Blankenship’s exam records do not support Dr. Armstrong’s marked or extreme limitations. An ALJ may, of course, decide within a "zone of choice" and reversal is unwarranted simply because some evidence supported a different conclusion. Here, we find the ALJ’s decision falls within the zone of choice and affirm the Commissioner on this issue. ISSUE 3: Whether the ALJ’s Step 5 determination is supported by substantial evidence Plaintiff contends the VE’s testimony is unreliable because the hypothetical question which formed the basis of the testimony was an incomplete portrayal of Plaintiff’s limitations as he failed to reconcile the RFC with the opinions of Dr. Brownfield and Dr. Armstrong. As discussed above, substantial evidence supports the ALJ’s RFC finding. The ALJ’s hypothetical question containing the same limitations is, therefore, supported by the record. For these reasons, the Court will affirm the Commissioner’s decision on this issue and to deny benefits in this case. 1:10 p.m. Adjourn-4-

FINAL JUDGMENT AFFIRMING THE DECISION OF THE COMMISSIONER and Plaintiffs case is dismissed. Signed by Honorable Mark E. Ford on December 5, 2017.

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION KEVIN KENT BEEMAN PLAINTIFF v. CIVIL NO. 3:16-cv-3124-MEF NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration 1 DEFENDANT FINAL JUDGMENT This cause is before the Court on the Plaintiff’s complaint for judicial review of an unfavorable final decision of the Commissioner of the Social Security Administration regarding his applications for Disability Insurance Benefits and Supplemental Security Income. The parties have consented to entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Eighth Circuit. The Court, having reviewed the record, the administrative transcript, the briefs of the parties, the applicable law, and the parties having waived oral argument, finds as follows, to-wit: For the reasons announced by the Court on the record on November 27, 2017, the Court finds that the decision of the Commissioner of Social Security is supported by substantial evidence, and the same is hereby affirmed. IT IS SO ORDERED this the 5th day of December, 2017./s/Mark E. Ford HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

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Description
03/27/2017
TEXT ONLY SOCIAL SECURITY SCHEDULING ORDER. Plaintiff must file a brief within thirty (30) days of the date of the filing of the transcript. The brief must identify the specific points for appeal, provide references to the medical evidence supporting each point, and include page numbers for all medical evidence referenced in the brief. Plaintiff's failure to file a timely brief may result in dismissal for failure to prosecute. Defendant must file a brief within thirty (30) days of the date Plaintiff's brief is served. Defendant's brief must respond to the issues raised in Plaintiff's brief and may include additional relevant issues. All briefs are limited to twenty (20) pages in length. Any brief exceeding the page limitation imposed herein may be stricken from the record. All Social Security Appeal cases will be scheduled for oral argument once the briefs have been filed. A scheduling notice will be issued and the case placed on the calendar for oral argument as soon as can reasonably be permitted under Court policies, but not earlier than sixty (60) days following the filing of the appeal brief by the Social Security Commissioner. The scheduling order will indicate the date, time, and location of the oral argument. Any requests for continuance of the oral argument must be made by a formal motion. Video conferencing will be considered, if requested by formal motion, on a case by case basis, unless otherwise directed in the scheduling order. Plaintiffs SSA Appeal Brief due by 4/20/2017. Signed by Honorable Mark E. Ford on March 27, 2017. (Text entry; no document attached.)
03/27/2017
TEXT ONLY ORDER directing the parties to identify the transcript page numbers of any duplicative and/or irrelevant medical records in their Social Security appeal briefs. Signed by Honorable Mark E. Ford on March 27, 2017. (Text entry; no document attached.)
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12/19/2016
COMPLAINT against Social Security Commissioner, filed by Kevin Kent Beeman.
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https://ecf.arwd.uscourts.gov/doc1/02911601377" onClick="goDLS{{'/doc1/02911601377','50557','7','','2','1','',''}};">1</a> Exhibit A)
1 Attachment
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12/19/2016
CIVIL COVER SHEET for case initiated by Kevin Kent Beeman.
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12/19/2016
***DISREGARD DUPLICATE FILING*** CIVIL COVER SHEET for case initiated by Kevin Kent Beeman.
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12/19/2016
MOTION for Leave to Proceed in forma pauperis, MOTION for Service by Kevin Kent Beeman.
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https://ecf.arwd.uscourts.gov/doc1/02911601399" onClick="goDLS{{'/doc1/02911601399','50557','13','','2','1','',''}};">1</a> IFP Application)
1 Attachment
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12/19/2016
NOTICE OF DIRECT ASSIGNMENT TO A U.S. MAGISTRATE JUDGE. This case has been assigned to a U.S. Magistrate Judge to conduct all proceedings and for entry of a final judgment. You must file the attached form memorializing consent or requesting reassignment to a District Judge within fourteen (14) days. Consent or Reassignment form due by 1/3/2017.
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https://ecf.arwd.uscourts.gov/doc1/02911601418" onClick="goDLS{{'/doc1/02911601418','50557','16','','2','1','',''}};">1</a> Consent/Reassignment Form)
1 Attachment
01/02/2017
TEXT ONLY ORDER granting 4 Motion for Leave to Proceed in forma pauperis as after review it is found that Plaintiff is unable to pay for the costs of commencement of this suit ; granting 4 Motion for Service and DIRECTING SERVICE on Social Security Administration Commissioner. The plaintiff is directed to serve a copy of the complaint and this order on the defendant by certified mail, return receipt requested, as well as the US Attorney General and US Attorney for Western District/Arkansas without prepayment of fees and costs. Defendant is to answer within 60 days from the date of service. Signed by Honorable Mark E. Ford on January 3, 2017. (Text entry; no document attached.)
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01/03/2017
THE DOCUMENT IS RESTRICTED TO COURT USERS. Summons Issued as to Social Security Administration Commissioner, U.S. Attorney and U.S. Attorney General and returned to attorney or plaintiff for service.
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01/05/2017
SECOND NOTICE OF DIRECT ASSIGNMENT TO A U.S. MAGISTRATE JUDGE. You must file the attached form memorializing consent or requesting reassignment to a District Judge within ten (10) days. Consent or Reassignment form due by 1/17/2017.
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https://ecf.arwd.uscourts.gov/doc1/02911607530" onClick="goDLS{{'/doc1/02911607530','50557','23','','2','1','',''}};">1</a> Consent/Reassignment Form)
1 Attachment
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01/05/2017
CONSENT TO ASSIGNMENT to U.S. Magistrate Judge by Kevin Kent Beeman. Government consent acknowledged pursuant to Standing Consent Letter.
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01/19/2017
SUMMONS Returned Executed by Kevin Kent Beeman. Social Security Administration Commissioner served on 1/17/2017, answer due 3/20/2017.
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03/20/2017
ANSWER to [1] Complaint by Social Security Administration Commissioner.
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03/20/2017
SOCIAL SECURITY TRANSCRIPT by Social Security Administration Commissioner.
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04/19/2017
APPEAL BRIEF (SOCIAL SECURITY) by Kevin Kent Beeman.
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Certificate of Service
1 Attachment
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05/19/2017
APPEAL BRIEF (SOCIAL SECURITY) by Social Security Administration Commissioner.
06/23/2017
TEXT ONLY INITIAL SCHEDULING ORDER. Counsel for government will be permitted to appear by telephone conference. Social Security Hearing set for 11/27/2017 01:00 PM in Fort Smith -- 2nd flr (Rm 226) before Honorable Mark E. Ford. Signed by Honorable Mark E. Ford on June 23, 2017. (Text entry; no document attached.)
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08/01/2017
Joint MOTION to Waive Oral Argument by Kevin Kent Beeman.
08/03/2017
TEXT ONLY ORDER granting 14 Motion to Waive. Signed by Honorable Mark E. Ford on August 3, 2017. (Text entry; no document attached.)
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11/27/2017
Minute Entry for proceedings held before Honorable Mark E. Ford: Social Security Hearing held on 11/27/2017. (Debbie Maddox-Digital Recorder) (Proceedings held in Fort Smith-Room 226)
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12/05/2017
FINAL JUDGMENT AFFIRMING THE DECISION OF THE COMMISSIONER and Plaintiffs case is dismissed. Signed by Honorable Mark E. Ford on December 5, 2017.
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