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Lemm v. Colvin

United States District Court, E.D. Arkansas, Jonesboro Division

June 2, 2016



         Plaintiff Brenda S. Lemm appeals the final decision of the Acting Commissioner of the Social Security Administration (Acting Commissioner) denying her claim for supplemental security income (SSI). Both parties have submitted appeals briefs, and the case is ready for decision.[1] The only issue before the Court is whether the Acting Commissioner’s decision is supported by substantial evidence. After reviewing the administrative record and the arguments of the parties, the Court finds that the Acting Commissioner’s decision is unsupported by substantial evidence.

         Procedural History

         Plaintiff protectively filed her application for SSI on April 25, 2013, alleging a disability onset date of April 12, 2012. She claims disability due to a left dislocated hip, bilateral hand pain and right knee pain. Plaintiff’s claims were denied at the initial and reconsideration levels. On March 25, 2014, the administrative law judge (ALJ) held an administrative hearing, and on October 23, 2014, issued an unfavorable opinion. Plaintiff requested that the Appeals Council review the decision, but the Appeals Council found no reason under its rules to review the ALJ’s decision. Therefore, the Appeals Council denied the request for review. It is from this decision that Plaintiff now brings her appeal.

         Administrative Proceedings

         Plaintiff was 59 years old at the time of the administrative hearing. She completed high school and had past relevant work as a salon owner/cosmetologist. The ALJ applied the five-step sequential evaluation process to Plaintiff’s claim.[2] Plaintiff satisfied the first step because she had not engaged in substantial gainful activity since her application date. At step two, the ALJ found that Plaintiff suffered from the severe impairments of degenerative disc disease, carpal tunnel syndrome, obesity, and degenerative joint disease. At the third step, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. § 404, Subpt. P, App. 1 ("listing"). Further, the ALJ found Plaintiff’s medically determinable impairments could reasonably be expected to cause her alleged symptoms but that her statements concerning the intensity, persistence and limiting effects of those symptoms were not entirely credible. The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform light work, [3] except that she could only frequently use her right hand to handle and finger. At step four, the ALJ found Plaintiff could perform her past relevant work as a cosmetologist. Accordingly, the ALJ found Plaintiff was not under a disability.

         Standard of Review

         The Court’s limited function on review is to determine whether the Commissioner’s decision is supported by substantial evidence on the record as a whole and free of legal error. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also 42 U.S.C. § 405(g). Substantial evidence is "less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision." Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998) (citing Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997)). The Commissioner’s decision cannot be reversed merely because substantial evidence would have supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004). However, "[t]he substantial evidence test employed in reviewing administrative findings is more than a mere search of the record for evidence supporting the [Commissioner’s] findings." Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987). "‘Substantial evidence on the record as a whole’ . . . requires a more scrutinizing analysis." Id. (quoting Smith v. Heckler, 735 F.2d 312, 315 (8th Cir. 1984)). "In reviewing the administrative decision, ‘[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.’" Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).


         On appeal, Plaintiff argues the Commissioner’s decision at step four that she can perform her past relevant work is not supported by substantial evidence on the record as a whole. Specifically, Plaintiff contends the ALJ wrongly rejected the opinion of treating physician Travis Richardson, D.O. and gave greater weight to the opinion of Roger Troxel, M.D., the one-time consultative examiner. Dr. Richardson’s records were submitted to the Appeals Council after the administrative hearing, and Plaintiff argues this evidence justifies remand. The Appeals Council determined however that remand was not required.

         At step four, the ALJ determines whether a claimant can return to her past relevant work.

         If step four is reached, the ALJ is required to evaluate the claimant’s ability to perform her past relevant work under the following guidelines:

(f) Your impairment(s) must prevent you from doing past relevant work. If we cannot make a determination or decision at the first three steps of the sequential evaluation process, we will compare our residual functional capacity assessment, with the physical and mental demands of your past relevant work. If you can still do this kind of work, we will find that you are not disabled.

See 20 C.F.R. § 416.920(f). The burden at step four remains with the claimant to prove her RFC and establish that she cannot return to her past relevant work. Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009).

         It is well-settled that a treating physician’s opinion is entitled to substantial weight "unless it is unsupported by medically acceptable clinical or diagnostic data." Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir. 2000) (quoting Kirby v. Sullivan, 923 F.2d 1323, 1328 (8th Cir. 1991)). This Court, however, is not faced with the questions of the Commissioner’s step-four analysis or the weight given to Dr. Richardson’s opinion. Rather, this Court must also consider that question in light of the fact that most of the records ...

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