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Penney v. Colvin

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

May 15, 2015

ROBERT G. PENNEY, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant.

MEMORANDUM OPINION

MARK E. FORD, Magistrate Judge.

Plaintiff, Robert G. Penney, 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 his claim for 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). 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 his applications for DIB and SSI on February 24, 2011, alleging an onset date of January 28, 2011, which was subsequently amended to February 5, 2011, due to anxiety, withdrawal, depression, pain, and irrational actions. (T. 245-251, 252-257, 338) Plaintiff's claims were denied initially on July 20, 2011, and upon reconsideration on August 12, 2011. (T. 191-193, 194-197, 199-200, 201-202) Plaintiff then requested an administrative hearing, which was held on July 31, 2012. Plaintiff was present and represented by counsel. (T. 86)

At the time of the administrative hearing, Plaintiff was 44 years of age and had obtained the equivalence of a high school education. (T. 90-91) He had also attended truck driving school. (T. 91) The Plaintiff had past relevant work ("PRW") experience as a truck driver, a landscape laborer, a general production worker, and a retail stocker. (T. 153-154).

In a Decision issued on November 30, 2012, the Administrative Law Judge ("ALJ"), Hon. Glenn A. Neel, found that although Plaintiff has the following severe impairments, residual effects of right hand injury, osteoarthritis of the lumbar spine, chronic neck pain, bipolar II disorder, and personality disorder - not otherwise specified, citing 20 C.F.R. § 404.1520(c) and 416.920(c), Plaintiff does not have an impairment or combination of impairments that meets or medically equals any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (T. 23-24). The ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform light work, as defined in 20 C.F.R. § 404.1567(b) and 416.967(b), except that he is limited to only occasional climbing, balancing, stooping, kneeling, crouching, crawling, and overhead work/reaching, and he is further limited to frequent but not constant handling with his non-dominant right upper extremity, he must avoid concentrated exposure to hazards, including no driving as a part of work, and he is limited to work where interpersonal contact is incidental to the work performed, the complexity of tasks is learned and performed by rote, with few variables and use of little judgment, and where the supervision required is simple, direct and concrete. (T. 25-32) With the assistance of a vocational expert, Jim Spraggins, the ALJ determined that while Plaintiff is unable to perform his past relevant work, Plaintiff could perform the requirements of light duty, unskilled representative occupations such as poultry production worker, production line assembler, sewing machine operator, and sedentary, unskilled jobs such as small product assembler, small production machine operator, and a small product inspector. (T. 32-33, 155-157) The ALJ then concluded that Plaintiff has not been under a disability, as defined in the Social Security Act, from January 28, 2011 through the date of the ALJ's Decision on November 30, 2012. (T. 33)

Plaintiff appealed this decision to the Appeals Council, but said request for review was denied on November 29, 2013. (T. 1-6) Plaintiff then filed this action on January 9, 2014. (Doc. 1) This case is before the undersigned pursuant to the consent of the parties. (Doc. 7) Both parties have filed appeal briefs, and the case is ready for decision. (Doc. 10 and 11)

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. "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." Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). 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 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 the disability, not simply the 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 application of a five-step sequential evaluation process to each claim for disability benefits. 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:

The Court must determine whether substantial evidence, taking the record as a whole, supports the Commissioner's decision that Plaintiff has not been disabled from the alleged date of onset, as amended, on February 8, 2011. Plaintiff raises one issue on appeal: that the ALJ erred in failing to make a proper credibility determination, as it amounted to a mere recitation of the medical evidence. (Doc. 10, pp. 7-10) Plaintiff specifically argues that the ALJ failed to mention the Polaski[1] factors and failed to set forth any analysis made pursuant to SSR 96-7P or 20 C.F.R. § 404.1529 or 20 C.F.R. § 416.929. (Doc. 10, p. 8) He also submits that the ALJ's Decision "failed to properly account for the physical determinations made by Dr. Brownfield which should have at least resulted in an RFC of sedentary." (Doc. 10, p. 9) The ...


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