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George v. Colvin

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

July 17, 2015

DELBERT L. GEORGE, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner Social Security Administration, Defendant.

MEMORANDUM OPINION

MARK E. FORD, Magistrate Judge.

Plaintiff, Delbert George, 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 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 his applications for DIB and SSI on November 30, 2011, and December 6, 2011, respectively. He alleged an onset date of August 2, 2008, due to degenerative disk disease ("DDD") of the cervical and lumbar spine, osteoarthritis of the right knee, shoulder pain, numbness down his legs, myalgias, and depression. Tr. 92, 106, 112, 327-347. The Commissioner denied his applications initially and on reconsideration. At the Plaintiff's request, an Administrative Law Judge ("ALJ") held an administrative hearing on March 14, 2013. Tr. 348-381. Plaintiff was present and represented by counsel.

At the time of the hearing, Plaintiff was 44 years old and possessed a tenth grade education. Tr. 92, 351. He had past relevant work ("PRW") experience as a carpenter and machine operator. Tr. 93, 356.

On August 28, 2013, the ALJ concluded that the Plaintiff's DD. the cervical and lumbar spine, osteoarthritis of the right knee, and myalgias were severe, but did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. Tr. 15-16. He determined that the Plaintiff could perform light work involving only occasional climbing, balancing, stooping, kneeling, crouching, and crawling. Tr. 16. With the assistance of a vocational expert ("VE"), the ALJ found the Plaintiff could perform work as a storage facility clerk, photo finishing counter clerk, furniture rental clerk, processed film cutter, box corner cutter, and wood heel beveler. Tr. 19.

The Appeals Council denied the Plaintiff's request for review on March 28, 2014. Tr. 3-8. Subsequently, Plaintiff filed this action. ECF No. 1. This matter 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. 11, 12.

II. Applicable Law:

This court's role is to determine whether substantial evidence supports the Commissioner's findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). We must affirm the ALJ's decision if the record contains substantial evidence to support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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 ALJ's decision. Id.

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 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 or her 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 or her age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Only if he reaches the final stage 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(a)(4)(v), 416.920(a)(4)(v).

III. Discussion:

On appeal, Plaintiff contends that the ALJ made the following errors: 1) failed to include his shoulder impairment as a severe impairment; 2) failed to develop the record with regard to his depression; 3) placed excessive weight on the opinion of Dr. Wilkins, which is contradicted by the record as a whole including the observations of range of motion restrictions and pain observed by both emergency room physicians and Dr. Brownfield; and, 4) lacked substantial evidence to support his determination that the Plaintiff was not disabled.

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. Severe Impairments:

In his first argument, the Plaintiff contests the ALJ's determination that his shoulder impairment was not severe. A severe impairment is an impairment that significantly limits the individual's physical or mental ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 404.1521(b), 416.920(c), 416.921(b); Social Security Ruling ("SSR") 96-3p, 1996 WL 374181; Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006). Thus, an impairment is not severe if it amounts only to a slight abnormality that would not significantly limit the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921; Bowen v. Yuckert, 482 U.S. 137, 153, 158 (1987) (O'Connor, J., concurring). If the impairment would have no more than a minimal effect on the claimant's ability to work, then it does not satisfy the requirement of step ...


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