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Russell v. Colvin

United States District Court, W.D. Arkansas, Fayetteville Division

November 25, 2014

KIMBERLY RUSSELL, Plaintiff,
v.
CAROLYN W. COLVIN[1], Commissioner Social Security Administration, Defendant.

MEMORANDUM OPINION

JAMES R. MARSCHEWSKI, Chief Magistrate Judge.

Plaintiff, Courtney Howell, brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of Social Security Administration (Commissioner) denying her claim for supplemental security income ("SSI") under Title XVI of the Social Security Act (hereinafter "the Act"), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial review, the court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See 42 U.S.C. § 405(g).

I. Procedural Background:

Plaintiff filed her application for SSI on May 13, 2010, alleging an onset date February 1, 2009, due to fibromyalgia, migraines, lower back pain, asthma, and endometriosis. Tr. 17, 131-38, 161, 168-169, 188, 194-195. Plaintiff's application was denied initially and on reconsideration. Tr. 74-80, 87-91. An administrative hearing was held on May 4, 2011. Tr. 24-63. Plaintiff was present and represented by counsel.

At the time of the hearing, Plaintiff was 39 years old, possessed a high school education and an Associate's Degree in Accounting with past relevant work ("PRW") as a receptionist, jailer, data entry clerk, liquor store clerk, fast food worker, and accounting clerk. Tr. 43, 53-58, 64, 123, 15, 156, 162, 178-185.

On July 28, 2011, the ALJ found Plaintiff's degenerative disk disease ("DDD") of the lumbar spine, obesity, major depressive disorder, and generalized anxiety disorder to be severe, but concluded they did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. Tr. 19-22. After partially discrediting Plaintiff's subjective complaints, the ALJ determined that Plaintiff retained the residual functional capacity ("RFC") to perform light work "requiring no more than occasional interaction with co-workers, involving simple, routine, and repetitive tasks, and only occasional judgment required." Tr. 22. With the assistance of a vocational expert, the ALJ found Plaintiff could perform work as a housekeeper, hand packager, and meat processor. Tr. 30.

On August 28, 2013, the Appeals Council declined to review the ALJ's decision. Tr. 1-6. Subsequently, Plaintiff filed this cause of action. This case is before the undersigned by consent of the parties. Both parties have filed appeal briefs, and the case is now ready for decision. ECF Nos. 12, 13.

II. Applicable Law:

This court's role is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind would find it adequate to support the Commissioner's decision. The ALJ's decision must be affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports the Commissioner's decision, the court may not reverse it simply because substantial evidence exists in the record that would have supported a contrary outcome, or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other words, if after reviewing the record it is possible to draw two inconsistent positions from the evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).

It is well-established that a claimant for Social Security disability benefits has the burden of proving her disability by establishing a physical or mental disability that has lasted at least one year and that prevents her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A), 1382c(a)(3)(A). The Act defines "physical or mental impairment" as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § § 423(d)(3), 1382(3)(c). A plaintiff must show that his or her disability, not simply their impairment, has lasted for at least twelve consecutive months.

The Commissioner's regulations require him to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the claimant is able to perform other work in the national economy given his age, education, and experience. See 20 C.F.R. § § 404.1520(a)-(f)(2003). Only if the final stage is reached does the fact finder consider the plaintiff's age, education, and work experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. § § 404.1520, 416.920 (2003).

III. Discussion:

Of particular concern to the undersigned is the ALJ's determination that Plaintiff's fibromyalgia did not constitute a severe impairment. A "severe impairment is defined as one which significantly limits [the claimant's] physical or mental ability to do basic work activities.'" Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006) (quoting 20 C.F.R. § 404.1520(c)).

"Fibromyalgia is a common nonarticular disorder of unknown cause characterized by generalized aching (sometimes severe); widespread tenderness of muscles, areas around tendon insertions, and adjacent soft tissues; muscle stiffness; fatigue; and poor sleep." THE MERCK MANUAL, Fibromyalgia, http://www.merckmanuals.com/professional/musculoskeletal_and_co nnective_tissue_disorders/bursa_muscle_and_tendon_disorders/fibromyalgia.html?qt=fibrom yalgia&alt=sh (last accessed November 25, 2014). Any fibromuscular tissues may be involved, but fibromyalgia is especially prevalent in the occiput, neck, shoulders, thorax, low back, and thighs. Id. The symptoms of fibromyalgia are typically generalized, in contrast to localized soft-tissue pain and tenderness, and can be exacerbated by environmental or emotional stress, poor sleep, trauma, or exposure to dampness or cold or by a physician who implies that the disorder is "all in the head." Id. There are, however, no laboratory tests for the presence or severity of fibromyalgia, and treatment includes exercise, local heat, ...


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