United States District Court, W.D. Arkansas, Fort Smith Division
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BARRY A. BRYANT, Magistrate Judge.
Kathy Robertson ("Plaintiff") brings this action pursuant to § 205(g) of Title II of the Social Security Act ("The Act"), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of the Commissioner of the Social Security Administration ("SSA") denying her application for a period of disability and Disability Insurance Benefits ("DIB") under Title II of the Act.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Timothy L. Brooks referred this case to this Court for the purpose of making a report and recommendation. In accordance with that referral, and after reviewing the arguments of counsel, this Court recommends Plaintiff's case be REVERSED AND REMANDED.
Plaintiff protectively filed an application for DIB on December 30, 2010. (Tr. 12, 112-115). Plaintiff alleged she was disabled due to arthritis, fibromyalgia, diabetes, depression, back injury, shoulder injury, allergies, pain, falling asleep while driving, and inability to lift. (Tr. 139). Plaintiff alleged an onset date of May 1, 2010. (Tr. 12, 112). This application was denied initially and again upon reconsideration. (Tr. 12, 69-74). Thereafter, Plaintiff requested an administrative hearing on her application and this hearing request was granted. (Tr. 76).
Plaintiff's administrative hearing was held on December 5, 2012. (Tr. 26-63). Plaintiff was present, and was represented by counsel, Iva Nell Gibbons, at this hearing. Id. Plaintiff and Vocational Expert ("VE") Shawn Hardeman testified at this hearing. Id. At the time of this hearing, Plaintiff was sixty (60) years old, which is defined as a "person of advanced age" under 20 C.F.R. § 404.1563(e), and had a BS in Computer. (Tr. 230).
On February 1, 2013, the ALJ entered an unfavorable decision denying Plaintiff's application for DIB. (Tr. 12-21). In this decision, the ALJ determined Plaintiff met the insured status requirements of the Act through December 31, 2015. (Tr. 14, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity ("SGA") since May 1, 2010, her alleged onset date. (Tr. 14, Finding 2).
The ALJ determined Plaintiff had the severe impairments of disorder of the lumbar spine, disorder of the right rotator cuff, diabetes mellitus, asthma, fibromyalgia, and obesity. (Tr. 14, Finding 3). The ALJ also determined Plaintiff's impairments did not meet or medically equal the requirements of any of the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 ("Listings"). (Tr. 15, Finding 4).
In this decision, the ALJ indicated he evaluated Plaintiff's subjective complaints and determined her RFC. (Tr. 16-20). First, the ALJ indicated he evaluated Plaintiff's subjective complaints and found her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC to perform sedentary work, except she could not engage in overhead reaching with the right upper extremity or have concentrated exposure to odors, dusts, gases, poor ventilation, and similar environments. (Tr. 16, Finding 5).
The ALJ evaluated Plaintiff's Past Relevant Work ("PRW"). (Tr. 20, Finding 6). The ALJ determined Plaintiff was able to perform her PRW as an accounting clerk. Id. Based on this finding, the ALJ determined Plaintiff had not been under a disability as defined by the Act from her onset date or from May 1, 2010 through the date of his decision. (Tr. 21, Finding 7).
Thereafter, Plaintiff requested the Appeals Council review the ALJ's unfavorable decision. (Tr. 7-8). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-6). On May 27, 2014, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 9, 10. This case is now ready for decision
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g) (2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to support the Commissioner's decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). As long as there is substantial evidence in the record that supports the Commissioner's decision, the Court may not reverse it simply because substantial evidence exists in the record that would have supported a contrary outcome or because the Court would have decided the case differently. See Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible to draw two inconsistent positions from the evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
It is well-established that a claimant for Social Security disability benefits has the burden of proving his or her disability by establishing a physical or mental disability that lasted at least one year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a "physical or mental impairment" as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), ...