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Winberry v. Colvin

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

April 27, 2015

SHERYL WINBERRY, Plaintiff,
v.
CAROLYN COLVIN, Commissioner Social Security Administration, Defendant.

MEMORANDUM OPINION

MARK E. FORD, Magistrate Judge.

Plaintiff, Sheryl Winberry, 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 claims for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI") 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 filed her applications for DIB and SSI on March 5, 2008, alleging an onset date of January 1, 2006, due to depression, thyroid problems, a pinched nerve in the right shoulder, carpal tunnel syndrome of the right wrist, migraine headaches, dyslexia, black outs, confusion, dizziness, and degenerative disk disease ("DDD") resulting in back pain. Tr. 146-155, 174, 183-184, 213-214, 237. The Commissioner denied Plaintiff's applications initially and on reconsideration. An Administrative Law Judge ("ALJ") held the first administrative hearing on September 16, 2009, following which he entered an unfavorable decision. Tr. 17-52, 60-71, 550-563, 614-649. Plaintiff appealed the decision to this court, resulting in a remand order in June 2011. Tr. 595-607. The ALJ held a supplemental hearing on December 28, 2011, after which he entered a second unfavorable decision. Tr. 569-591. This court again remanded the case on February 11, 2013, due to the ALJ's failure to follow the directives of our first remand order. The ALJ held a third hearing on February 19, 2014. Tr. 890-925. Plaintiff was present and represented by counsel.

The Plaintiff possessed a high school education and had completed "[v]arious courses through Homeland Security (hazardous materials, etc.), Crawford County, [and] Hot Springs, AR." Tr. 175, 180. Plaintiff had past relevant work ("PRW") experience as a daycare worker, flower shop delivery driver, and home health aide. Tr. 175, 180, 193-200.

On June 30, 2014, the ALJ found Plaintiff's fibromyalgia, personality disorder, cognitive disorder, depression, anxiety, DDD, right shoulder pain, knee pain, and ADHD were severe, but did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. Tr. 868-870. After partially discrediting Plaintiff's subjective complaints, the ALJ determined that Plaintiff retained the residual functional capacity ("RFC") to perform sedentary work except

The claimant can occasionally operate foot controls, climb, balance, crawl and stoop, but cannot crouch or kneel. In addition, the claimant must avoid concentrated exposure to vibrations, fumes, dusts, gases, humidity and wetness. Nonexertionally, the claimant can perform simple, routine and repetitive tasks in a setting where interpersonal contact is incidental to the work performed; the complexity of tasks is learned and performed by rote, with few variables and little judgment; and the supervision is simple, direct and concrete.

Tr. 871. The ALJ then found Plaintiff could perform work as a laminator I. Tr. 880.

Subsequently, Plaintiff filed this action. ECF No. 1. This case is before the undersigned by consent of the parties. ECF No. 7. 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 substantial evidence supports the Commissioner's findings. 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. We must affirm the ALJ's decision 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, we must affirm the decision of the ALJ. 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 her 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 four issues on appeal: 1) The ALJ failed to follow the directives of this court by further investigating her personality disorder; 2) The ALJ failed to consider Listing 12.08; 3) The ALJ made an inaccurate RFC determination; and, 4) The ALJ improperly concluded the Plaintiff could perform work that exists in significant numbers in the national economy. We disagree. The Court has reviewed the entire transcript. The complete set of facts and arguments are presented in the parties' briefs and the ALJ's opinion, and are repeated here only to the extent necessary.

A. Failure to Follow the Directives of this Court:

In her first argument, the Plaintiff contends that the ALJ failed to obey the mandates of the remand order for the following reasons: 1) he failed to send a medical request form to Western Arkansas Counseling and Guidance Center ("WACGC") that met HIPPA requirements; 2) he failed to follow-up with Day Spring to find out where the doctor might now be working; and 3) he failed to ask Dr. Efird to complete an RFC assessment. For the reasons enumerated below, we find no error.

The agency must comply with a federal district court's mandate in the court's remand order. See Sullivan v. Hudson, 490 U.S. 877, 885-886 (1989) (deviation from the court's remand order in the subsequent administrative proceedings is legal error); United States v. Bartsch, 69 F.3d 864, 866 (8th Cir. 1995) (the law of the case doctrine is often used interchangeably with closely related mandate rule for the principle that a lower tribunal must scrupulously follow the mandate of the reviewing court on remand). To fulfill the mandate, the inferior court is bound to follow both the letter and spirit of the remand. See Thornton v. Carter, 109 F.2d 316, 320 (8th Cir. 1940).

Here, the "spirit of the remand" was to allow the ALJ to develop the record further with regard to the Plaintiff's personality disorder. Specifically, the Court directed the ALJ to obtain RFC assessments from the Plaintiff's treating psychiatrist and counselor. In determining whether an ALJ has fully and fairly developed the record, the proper inquiry is whether the record contained sufficient evidence for the ALJ to make an informed decision. ...


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