United States District Court, E.D. Arkansas, Northern Division
FREDA A. HERSHBERGER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.
A Hershberger, Plaintiff, represented by Frederick S.
Spencer, Attorney at Law.
Security Administration, Defendant, represented by Martin W.
Long, Social Security Administration & Stacey Elise McCord,
U.S. Attorney's Office.
DEERE, Magistrate Judge.
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. 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. If no objections are filed, Judge
Marshall may adopt the recommended disposition without
independently reviewing all of the record evidence.
Freda A. Hershberger seeks judicial review of the denial of
her second application for supplemental security income
(SSI). Ms. Hershberger alleged disability
beginning October of 2005. She based disability on
fibromyalgia and post traumatic stress
Commissioner's decision. SSI is not payable prior to the
application date,  so the Commissioner's ALJ
considered whether Ms. Hershberger was disabled beginning
September 5, 2012, the date of her application.
identified fibromyalgia and anxiety as severe
impairments. The ALJ determined that her
impairments limited Ms. Hershberger to unskilled, light
work. The ALJ questioned a vocational
expert, determined work existed that Ms. Hershberger could
do, and denied the application.
the Commissioner's Appeals Council denied a request for
review,  the decision became a final decision
for judicial review. Ms. Hershberger filed this case to
challenge the decision. This recommendation explains why
the court should affirm the decision.
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.
legal principles. The court must determine whether
substantial evidence supports the decision and whether the
ALJ made a legal error. Substantial evidence means that a
reasonable mind would deem the evidence adequate to show that
Ms. Hershberger could do some light, unskilled work.
work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10
pounds." In addition to these limits, the ALJ
included further restrictions for Ms. Hershberger, including
limits on bending, crouching, and climbing.
reasonable mind would accept the evidence as adequate for the
1. Medical evidence established no disabling physical
symptoms. A claimant must prove disability with medical
evidence; allegations are not enough. 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. At that time, Ms. Hershberger was a
stay-at-home mother. She saw a rheumatologist
regularly. 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.
Medical evidence for the time period for which benefits were
denied documented a medical visit for sinus
congestion. This evidence established no
disabling symptoms. According to agency medical experts, Ms.
Hershberger could do light work involving occasional postural
2. Medical evidence established no disabling mental symptoms.
At age 22, the rheumatologist diagnosed anxiety disorder and
prescribed psychotropic medication. Ms. Hershberger
stopped taking the medication when she became pregnant with
her third child.
At age 27, Ms. Hershberger underwent an agency mental
diagnostic exam. She reported avoiding social groups
to reduce anxiety triggers. According to the
examiner, Hershberger could cope with the mental demands of
basic work tasks and sustain concentration on basic
Ten months later, Ms. Hershberger's attorney sent her for
a mental diagnostic exam. Ms. Hershberger stated
that her anxiety worsened when she divorced; she had not
taken medication for nearly two years due to financial
constraints. 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
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. 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