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Cox v. Colvin

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

July 2, 2015

REBECCA J. COX, Plaintiff,
v.
CAROLYN W. COLVIN Commissioner, Social Security Administration, Defendant.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

BARRY A. BRYANT, Magistrate Judge.

Rebecca J. Cox ("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 P. K. Holmes, III 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.

1. Background:

Plaintiff protectively filed an application for DIB on April 25, 2012. (Tr. 10, 107-110).[1] Plaintiff alleged she was disabled due to degenerative disc disease in her neck and back, bulging and herniated disc, vein disease, high blood pressure, and arthritis. (Tr. 122). Plaintiff alleged an onset date of May 12, 2007, which was later amended to October 25, 2010. (Tr. 10, 35, 122). This application was denied initially and again upon reconsideration. (Tr. 10, 49-54). Thereafter, Plaintiff requested an administrative hearing on her application and this hearing request was granted. (Tr. 62-63).

Plaintiff's administrative hearing was held on March 21, 2013. (Tr. 32-48). Plaintiff was present, and was represented by counsel, Davis Duty, at this hearing. Id. Plaintiff and Vocational Expert ("VE") Floyd Massey 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 high school education. (Tr. 123).

On June 20, 2013, the ALJ entered an unfavorable decision denying Plaintiff's application for DIB. (Tr. 10-18). In this decision, the ALJ determined Plaintiff met the insured status requirements of the Act through March 31, 2012. (Tr. 12, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity ("SGA") since October 25, 2010. (Tr. 12, Finding 2).

The ALJ determined Plaintiff had the severe impairments of arthritis, degenerative disc disease, and varicose veins. (Tr. 12, 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. 12, Finding 4).

In this decision, the ALJ indicated he evaluated Plaintiff's subjective complaints and determined her RFC. (Tr. 13-16). 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 medium work, except she can lift, carry, push and pull fifty pounds occasionally and twenty-five pounds frequently; can sit for six hours with normal breaks and stand or walk for six hours with normal breaks in an eight-hour workday; can frequently climb, balance, stoop, kneel, crouch, and crawl; and is able to frequently operate bilateral foot controls. (Tr. 13, Finding 5).

The ALJ evaluated Plaintiff's Past Relevant Work ("PRW"). (Tr. 16, Finding 6). The ALJ determined Plaintiff had no PRW. Id. The ALJ then considered whether Plaintiff retained the capacity to perform other work existing in significant numbers in the national economy. (Tr. 16-17, Finding 10). The VE testified at the administrative hearing on this issue. Id. Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform the following occupations: (1) food service worker with 26, 300 such jobs in the United States and 450 such jobs in Arkansas; (2) hand packager with 42, 000 such jobs in the United States and 300 such jobs in Arkansas; (3) maid with 130, 000 such jobs in the United States and 1, 050 such jobs in Arkansas; and (4) Cashier II with 810, 000 such jobs in the United States and 7, 000 such jobs in Arkansas. Id. Because Plaintiff retained the capacity to perform this other work, the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from October 25, 2010 through the date last insured of March 31, 2012. (Tr. 17, Finding 11).

Thereafter, Plaintiff requested the Appeals Council review the ALJ's unfavorable decision. (Tr. 28). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-6). On October 14, 2014, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 10, 11. 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), ...


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