United States District Court, W.D. Arkansas, Harrison Division
SHEILA L. NOZAR PLAINTIFF
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration DEFENDANT
HONORABLE ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE
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
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.
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
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).
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.
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.
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).
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
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.
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).
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 ...