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Nozar v. Colvin

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

June 9, 2016

SHEILA L. NOZAR PLAINTIFF
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration DEFENDANT

          MEMORANDUM OPINION

HONORABLE ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Sheila L. Nozar, brings this action pursuant to 42 U.S.C. §405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (Commissioner) denying her claim for a period of disability and disability insurance benefits (DIB) under the provisions of Title II of the Social Security Act (Act). 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. 42 U.S.C. §405(g).

         I. Procedural Background:

         Plaintiff filed her current application for DIB on March 27, 2012, alleging an inability to work since May 5, 2010, due to a bulging disc in her neck, difficulty breathing, degenerative disease in her spine, and pain and weakness in her arms and hands. (Tr. 149-150, 169, 173). Plaintiff’s date last insured is December 31, 2016. (Tr. 14). An administrative hearing was held on May 9, 2013, at which Plaintiff appeared with counsel and she, her husband, and her friend testified. (Tr. 28-86).

         By written decision dated November 22, 2013, the ALJ found that during the relevant time period, Plaintiff had an impairment or combination of impairments that were severe - degenerative disc disease of the cervical spine, degenerative joint disease of the right shoulder status post-surgery, and bilateral carpal tunnel syndrome, right worse than left. (Tr.14). However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff’s impairments did not meet or equal the level of severity of any impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 15). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:

perform light work as defined in 20 CFR 404.1567(b) except she can perform only occasional reaching and frequent, but not constant, handling and fingering bilaterally. In addition, she must avoid concentrated exposure to hazards, including no driving as part of work.

(Tr. 15). With the help of the vocational expert (VE), the ALJ determined that during the relevant time period, Plaintiff could perform the job of rental clerk. (Tr. 23).

         Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied that request on January 22, 2015. (Tr. 1-5). Subsequently, Plaintiff filed this action. (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 now ready for decision. (Docs. 12, 13).

         The Court has reviewed the entire transcript. The complete set of facts and arguments are presented in the parties’ briefs, and are repeated here only to the extent necessary.

         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. 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 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). 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). A Plaintiff must show that her disability, not simply her impairment, has lasted for at least twelve consecutive months.

         The Commissioner’s regulations require him to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant had engaged in substantial gainful activity since filing her claim; (2) whether the claimant had a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing past relevant work; and (5) whether the claimant was able to perform other work in the national economy given her age, education, and experience. See 20 C.F.R. §404.1520. Only if the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience in light of her RFC. See McCoy v. Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §404.1520, abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. § 404.1520.

         III. Discussion:

         Plaintiff raises the following issues in this matter: 1) The ALJ erred by attributing to treating physicians the ability of Plaintiff to perform work without them being presented the question; 2) The ALJ erred by overly relying on the opinions of the non-examining physician; 3) The ALJ erred by failing to acknowledge that medications are effective only when Plaintiff is not undertaking work activities; 4) The ALJ erred by failing to appropriately consider the effects of Plaintiff’s shoulder/arm pathology in combination with her carpal tunnel syndrome on her ability to grasp and finger; and 5) The ALJ erred by using Plaintiff’s performance of insignificant activities as a reason to find her less than credible. (Doc. 12).

         Before addressing Plaintiff’s arguments, the Court will briefly discuss Plaintiff’s medical records. Beginning with the onset date, on May 5, 2010, Dr. Thomas Knox performed the following procedures on Plaintiff’s right shoulder: arthroscopy, right shoulder; arthroscopic subacromial bursectomy; arthroscopic release coracoacromial ligament; arthroscopic abrasion acromioplasty; and arthroscopic partial lateral claviculectomy. (Tr. 280). In subsequent follow-up visits to Dr. Knox, Plaintiff was reported as doing very well, and underwent physical therapy. (Tr. 281-284, 378). By August ...


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