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Wise-Gibson v. Colvin

United States District Court, W.D. Arkansas, Fort Smith Division

January 14, 2015

SHERRY WISE-GIBSON, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Commissioner Social Security Administration, Defendant.

MEMORANDUM OPINION

MARK E. FORD, Magistrate Judge.

Plaintiff, Sherry Wise-Gibson, 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 disability insurance benefits ("DIB") and supplemental security income under Titles II and 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 applied for DIB and SSI on February 16, 2011. (Tr. 17.) Plaintiff alleged an onset date of March 20, 2010 due to "facet arthropathy, disc bulge with extreme pain and incontinence, severe depression. borderline personality disorder, attention deficit disorder, bipolar, back injury, and spinal disc bulges at L3-4." (Tr. 169.) Plaintiff's applications were denied initially and on reconsideration. Plaintiff requested an administrative hearing, which was held on November 29, 2011 in front of Administrative Lw Judge ("ALJ") Ronald L. Burton. Plaintiff was present to testify and was represented by counsel. The ALJ also heard testimony from Vocational Expert ("VE") Sarah Moore. (Tr. 44.)

At the time of the administrative hearing, Plaintiff was 40 years old, possessed a high school diploma, and had completed LPN (licensed practical nurse) training. (Tr. 47-48.) The Plaintiff had past relevant work experience ("PRW") in the nursing field as an LPN.

On May 11, 2012, the ALJ concluded that Plaintiff suffered from the following severe impairments: degenerative disc disease and personality disorder. (Tr. 19.) The ALJ found that Plaintiff maintained the residual functional capacity to perform medium work "except only minimal interpersonal contact." (Tr. 22. After questioning the VE about the requirements of Plaintiff's PRW, the ALJ determined that the Plaintiff could perform her former PRW as a Licensed Practical Nurse. (Tr. 29.)

Plaintiff requested a review by the Appeals Council on July 14, 2012. (Tr. 12.) The Appeals Council declined review on August 27, 2013. (Tr. 1.) Plaintiff filed this appeal on October 31, 2013. (ECF. No. 1.) Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 14, 15.)

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. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it adequate to support the Commissioner's decision. Id. "Our review extends beyond examining the record to find substantial evidence in support of the ALJ's decision; we also consider evidence in the record that fairly detracts from that decision." Id. As long as there is substantial evidence in the record to support the Commissioner's decision, the court may not reverse the decision simply because substantial evidence exists in the record to support a contrary outcome, or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If the court finds it possible "to draw two inconsistent positions from the evidence, and one of those positions represents the Secretary's findings, the court must affirm the decision of the Secretary." Cox, 495 F.3d at 617 (internal quotation and alteration omitted).

It is well-established that a claimant for Social Security disability benefits has the burden of proving his disability by establishing a physical or mental disability that has lasted at least one year and that prevents him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see 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 disability, not simply his impairment, has lasted for at least twelve consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).

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

Plaintiff raises five issues on appeal: 1) the ALJ erred at Step Two because Plaintiff has additional severe impairments; 2) the ALJ erred at Step Three because the Plaintiff meets Listing 12.04, 12.06, and 12.08; 3) the ALJ erred because his RFC Finding is contrary to the evidence, in part because the Commissioner excluded evidence from Plaintiff's treating primary physician from the transcript without explanation; 4) the ALJ erred in his Polaski credibility analysis; and 5) the ALJ erred because Plaintiff cannot perform her PRW. This Court agrees that the exclusion of the treating physician evidence and the ALJ's ...


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