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Hershberger v. Colvin

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

June 29, 2016

CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

          Freda A Hershberger, Plaintiff, represented by Frederick S. Spencer, Attorney at Law.

          Social Security Administration, Defendant, represented by Martin W. Long, Social Security Administration & Stacey Elise McCord, U.S. Attorney's Office.


          BETH DEERE, Magistrate Judge.

         Instructions. The following recommended disposition was prepared for Judge D.P. Marshall. Either party to this dispute may file written objections to this recommendation. Objection must be specific and state the factual and/or legal basis for the objection. An objection to a factual finding must identify the finding and the evidence supporting the objection. Objections must be filed with the clerk of the court no later than 14 days from the date of this recommendation.[1] The objecting party must serve the opposing party with a copy of an objection. Failing to object within 14 days waives the right to appeal questions of fact.[2] If no objections are filed, Judge Marshall may adopt the recommended disposition without independently reviewing all of the record evidence.

         Background. Freda A. Hershberger seeks judicial review of the denial of her second application for supplemental security income (SSI).[3] Ms. Hershberger alleged disability beginning October of 2005. She based disability on fibromyalgia and post traumatic stress disorder.[4]

         The Commissioner's decision. SSI is not payable prior to the application date, [5] so the Commissioner's ALJ considered whether Ms. Hershberger was disabled beginning September 5, 2012, the date of her application.

         The ALJ identified fibromyalgia and anxiety as severe impairments.[6] The ALJ determined that her impairments limited Ms. Hershberger to unskilled, light work.[7] The ALJ questioned a vocational expert, determined work existed that Ms. Hershberger could do, and denied the application.[8]

         After the Commissioner's Appeals Council denied a request for review, [9] the decision became a final decision for judicial review.[10] Ms. Hershberger filed this case to challenge the decision.[11] This recommendation explains why the court should affirm the decision.

         Ms. Hershberger's allegations. Ms. Hershberger contends that the ALJ failed to consider the combined effect of her impairments. She argues that substantial evidence does not support the decision.[12]

         Applicable legal principles. The court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.[13] Substantial evidence means that a reasonable mind would deem the evidence adequate to show that Ms. Hershberger could do some light, unskilled work.

         "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds."[14] In addition to these limits, the ALJ included further restrictions for Ms. Hershberger, including limits on bending, crouching, and climbing.[15]

         A reasonable mind would accept the evidence as adequate for the following reasons:

1. Medical evidence established no disabling physical symptoms. A claimant must prove disability with medical evidence; allegations are not enough.[16] Ms. Hershberger provided years of medical evidence, but most of it preceded the time period covered in this application.
Early evidence showed a diagnosis of fibromyalgia at age 19.[17] At that time, Ms. Hershberger was a stay-at-home mother. She saw a rheumatologist regularly.[18] The rheumatologist prescribed medication and aquatic exercise to control fibromyalgia symptoms, but documented no functional limitations. At Ms. Hershberger's most recent visit - at age 26 - the rheumatologist's exam was normal, except for tenderness in peripheral joints.[19]
Medical evidence for the time period for which benefits were denied documented a medical visit for sinus congestion.[20] This evidence established no disabling symptoms. According to agency medical experts, Ms. Hershberger could do light work involving occasional postural functions.
2. Medical evidence established no disabling mental symptoms. At age 22, the rheumatologist diagnosed anxiety disorder and prescribed psychotropic medication.[21] Ms. Hershberger stopped taking the medication when she became pregnant with her third child.[22]
At age 27, Ms. Hershberger underwent an agency mental diagnostic exam.[23] She reported avoiding social groups to reduce anxiety triggers.[24] According to the examiner, Hershberger could cope with the mental demands of basic work tasks and sustain concentration on basic tasks.[25]
Ten months later, Ms. Hershberger's attorney sent her for a mental diagnostic exam.[26] Ms. Hershberger stated that her anxiety worsened when she divorced; she had not taken medication for nearly two years due to financial constraints.[27] According to the examiner, anxiety would have negatively affected the ability to work; inattentiveness would have interfered with concentration for extended periods of time and made it difficult to carry out detailed instructions.[28]
The examiner opined that Ms. Hershberger had a "limited but satisfactory" ability to carry out very short and simple instructions, complete a normal workday, and interact with the general public.[29] These limitations would not preclude all work. The disabling reported limitation related to absenteeism. The examiner indicated that impairment or treatment would result in missing four workdays per ...

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