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Strother v. Berryhill

United States District Court, W.D. Arkansas, Hot Springs Division

February 16, 2017

NANCY BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT



         Tammy Strother (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying her application for Disability Insurance Benefits (“DIB”) under Title II of the Act. The parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 7.[1] Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.

         1. Background:

         Plaintiff's application for DIB was filed on April 8, 2013. (Tr. 13, 151-152). Plaintiff alleged she was disabled due to scoliosis, arthritis, her right arm and shoulder, back and neck pain, hip socket swelling, vision problems, and nerve damage. (Tr. 166). Plaintiff alleged an onset date of September 3, 2011. (Tr. 13, 151). This application was denied initially and again upon reconsideration. (Tr. 85-97, 100-101). Thereafter, Plaintiff requested an administrative hearing on her application and this hearing request was granted. (Tr. 102).

         Plaintiff's administrative hearing was held on July 30, 2014. (Tr. 32-69). Plaintiff was present and was represented by counsel, Shannon Muse Carroll, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Mack Welch testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-three (43) years old and had a ninth grade education. (Tr. 36-38).

         On November 5, 2014, the ALJ entered an unfavorable decision denying Plaintiff's application for DIB. (Tr. 13-27). In this decision, the ALJ determined the Plaintiff met the insured status requirements of the Act through December 31, 2015. (Tr. 15, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since September 3, 2011, her alleged onset date. (Tr. 15, Finding 2).

         The ALJ determined Plaintiff had the severe impairments of fibromyalgia, osteoarthritic, back and neck pain, degenerative disc disease, mild scoliosis, and right shoulder pain. (Tr. 15, Finding 3). The ALJ then determined Plaintiff's impairments did not meet or medically equal the requirements of any of the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 16, Finding 4).

         In this decision, the ALJ evaluated Plaintiff's subjective complaints and determined her RFC. (Tr. 16-24). First, the ALJ indicated he evaluated Plaintiff's subjective complaints and found her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC for a limited range of light work and stated as follows:

The claimant has mild to moderate pain. She has certain restrictions related to this pain and the diagnosis of fibromyalgia, osteoarthritic, and back and neck pain. She can occasionally climb, stoop, crouch, kneel, and/or crawl. The pain has been basically treated with over-the-counter medication, and more recently (in the last two months) with Tramadol. Exertionally, the claimant has the residual functional capacity to perform light work, with the ability to lift-carry and push-pull no more than 20 pounds occasionally and 10 pounds more frequency, the ability to stand and/or walk up to 6 to 8 hours (1- 2 without interruption) in an 8-hour workday, and the ability to stand and/or walk up to 6 hours in an 8-hour workday (1-2 without interruption) as defined in 20 CFR 404.1567(b). The problem is with overhead reaching with the right dominant shoulder and arm. It is very limited; less than one-third of the day. There are no restrictions in the left. Reaching and handling is limited to frequent as to constant. Because of that limitation, the claimant should avoid operating moving machinery, such as a bus, taxicab, car or forklift. She should also avoid performing assembly type work that requires constant repetitive type of reaching and grasping.
Mentally, the only issue is an adjustment disorder. However, because of her past relevant work, which has been at the low skilled level or unskilled level, the claimant is restricted to unskilled activities as she has performed in the past. These are unskilled rote activities, where she can understand, carry out and remember concrete instructions and in which contact with supervision, co-workers and the public is superficial. Thus, the claimant would have the ability to briefly meet-greet others, make change, and give simple instructions and directions.
The law requires that the claimant under the age of 50 be considered for sedentary work. Therefore, in alternative, the undersigned has concluded that the claimant also has the residual functional capacity to lift only 10 pounds or less and perform work at the sitting position with a sit/stand option, standing at an hour or sitting at an hour at a time. All other restrictions are the same as listed above.

         (Tr. 16-17, Finding 5).

         The ALJ evaluated Plaintiff's Past Relevant Work (“PRW”). (Tr. 24, Finding 6). The ALJ found Plaintiff unable to perform his PRW. Id. The ALJ, however, also determined there was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 25, Finding 10). The ALJ based this determination upon the testimony of the VE. Id. Specifically, the VE testified that given all Plaintiff's vocational factors, a hypothetical individual would be able to perform the requirements of a representative occupation such as office helper with 1, 200 such jobs in Arkansas and 70, 000 such jobs in the nation, and cashier with 1, 100 such jobs in Arkansas and 240, 000 such jobs in the nation. In the alternative, scale operator with 500 such jobs in Arkansas and 28, 000 such jobs in the nation and ceramic tile inspector with 500 such jobs in Arkansas and 30, 000 such jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff had not been under a disability as defined by the Act from September 3, 2011, through the date of the decision. (Tr. 27, Finding 11).

         Thereafter, Plaintiff requested the Appeals Council review the ALJ's decision. (Tr. 7-9). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-6). On March 14, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on March 15, 2016. ECF No. 7. Both Parties have filed appeal briefs. ECF Nos. 11, 12. This case is now ready for decision.

         2. Ap ...

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