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Sekavec v. Berryhill

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

June 19, 2017

NANCY BERRYHILL Commissioner, Social Security Administration DEFENDANT



         Joann Sekavec (“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 July 11, 2006. (Tr. 188-189). Plaintiff alleged she was disabled due to scoliosis, degenerative disc disease, ruptured disc, bulging disc, sciatic nerve, and pain. (Tr. 203). Plaintiff alleged an onset date of February 3, 2005. (Tr. 203). This application was denied initially, again upon reconsideration, and after a hearing by an ALJ in a decision dated September 25, 2009. (Tr. 31-49, 82-83, 87-95, 188-192).

         On May 6, 2010, the Appeals Council granted review and remanded the case for further proceedings. (Tr. 96-98). After a new hearing, the ALJ issued a decision on January 18, 2011, denying Plaintiff's DIB claim. (Tr. 10-17, 50-81). The Appeals Council denied review of this decision. (Tr. 1-6). Plaintiff appealed, and on June 24, 2013, this Court remanded the case to the Commissioner. (Tr. 466-473).

         Following remand, Plaintiff had an administrative hearing on June 9, 2014. (Tr. 413-443). Plaintiff was present and was represented by counsel, Shannon Carroll, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Dianne Smith testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-nine (49) years old. (Tr. 418).

         On July 14, 2014, the ALJ entered a partially favorable decision finding a closed period of disability from February 3, 2005, to March 7, 2009. (Tr. 390-407). In this decision, the ALJ determined the Plaintiff last met the insured status requirements of the Act through March 31, 2008. (Tr. 394, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since February 3, 2005. (Tr. 394, Finding 2).

         The ALJ determined that from February 3, 2005 to March 7, 2009, Plaintiff had the severe impairments of early chronic obstructive pulmonary disease (COPD) and degenerative disc disease of the lumbar spine with a herniated disc. (Tr. 394, Finding 3). The ALJ then determined that from February 3, 2005 to March 7, 2009, 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. 395, Finding 4).

         The ALJ determined Plaintiff's closed period of disability ended on March 8, 2009, based on medical improvement. (Tr. 401, finding 14). This was based on an updated MRI which showed narrowing at ¶ 5-S1, but no longer a disc herniation, and a disc bulge with improvement of the nerve root impingement. Id.

         For the relevant period beginning on March 8, 2009, the ALJ determined Plaintiff's subjective complaints were not entirely credible. (Tr. 402-405). The ALJ also determined Plaintiff had the RFC to perform light work; could lift or carry up to ten pounds frequently, twenty pounds occasionally; could stand or walk up to six hours in an eight-hour workday; could not frequently bend, crouch, or climb; and must avoid concentrated exposure to respiratory irritants such as dust, fumes, strong odors, or extreme changes in temperature or humidity. (Tr. 402, Finding 16). The ALJ also restricted Plaintiff to semiskilled work where interpersonal contact was routine, but superficial; complexity of tasks was learned by experience, involved several variables, and judgment was exercised within limits; and the supervision required was little for routine tasks, but detailed for non-routine tasks. Id.

         The ALJ evaluated Plaintiff's Past Relevant Work (“PRW”). (Tr. 405, Finding 17). The ALJ found Plaintiff was unable to perform her PRW. Id. The ALJ, however, also determined that beginning March 8, 2009, there was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 406, Finding 21). 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 companion with 7, 500 such jobs in the region and 270, 000 such jobs in the nation and first aide attendant with 1, 800 such jobs in the region and 21, 000 such jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff's disability ended on March 8, 2009. (Tr. 406, Finding 22).

         Thereafter, Plaintiff requested the Appeals Council review the ALJ's decision. (Tr. 384). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 381-383). On May 23, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on May 23, 2016. ECF No. 7. Both Parties have filed appeal briefs. ECF Nos. 11, 12. This case is now ready for decision.

         2. Applicable Law:

         In reviewing this case, this Court is required to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g) (2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to support the Commissioner's decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). 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. See Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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. See 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 his or her disability by establishing a physical or mental disability that lasted at least one year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a “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), 1382(3)(c). A plaintiff must show that his or her disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See 42 U.S.C. § 423(d)(1)(A).

         To determine whether the adult claimant suffers from a disability, the Commissioner uses the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers the plaintiff's age, education, and work experience in light of his or her RFC if the final stage of this analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).

         3. Discussion:

         Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to find Plaintiff met a Listing, (B) in failing to consider Plaintiff's impairments in combination, (C) in his credibility determination, and (D) by improperly discrediting the objective findings of Plaintiff's treating physician. ECF No. 11, Pgs. 7-20. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 12.

         A. ...

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