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Johnson v. Berryhill

United States District Court, W.D. Arkansas, Fayetteville Division

July 20, 2017

JEAN JOHNSON PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration[1] DEFENDANT

          MEMORANDUM OPINION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Jean Johnson, 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, disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under the provisions of Titles II and XVI 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. § 405(g).

         I. Procedural Background:

         Plaintiff protectively filed her application for DIB on May 27, 2013, and her application for SSI on November 7, 2013. (ECF No. 10, p. 51). In her applications, Plaintiff alleges disability due to migraines, a herniated disc, peripheral neuropathy in her lower extremities, bilateral hip pain, meralgia paresthetica, [2] anxiety, high blood pressure, and a brain tumor. (ECF No. 10, p. 258). Plaintiff alleges an onset date of August 16, 2012. (ECF No. 10, pp. 51, 254). These applications were denied initially and again upon reconsideration. (ECF No. 10, pp. 95-144).

         Thereafter, Plaintiff requested an administrative hearing on her denied applications, and this hearing request was granted. (ECF No. 10, pp. 161-62). Plaintiff's administrative hearing was held on August 27, 2014, in Fort Smith, Arkansas (ECF No. 10, pp. 67-94). Plaintiff appeared in person and was represented by Jack Rawlins. Id. Plaintiff and Vocational Expert (“VE”) Seth Langley testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-three (43) years old, which is defined as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). As for her level of education, Plaintiff graduated high school and earned a vocational degree as a Licensed Practical Nurse (“LPN”). (ECF No. 10, pp. 74-75).

         After this hearing, on December 3, 2014, the ALJ entered an unfavorable decision denying Plaintiff's applications for DIB and SSI. (ECF No. 10, pp. 48-61). In this decision, the ALJ found Plaintiff last met the insured status requirements of the Act through December 31, 2017. (ECF No. 10, p. 53, Finding 1). The ALJ also found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since August 16, 2012, Plaintiff's alleged onset date. (ECF No. 10, p. 53, Finding 2). The ALJ determined Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, herniated nucleus pulposus at ¶ 4-5 and L5-S1 status post laminectomy discectomy, and migraine headaches. (ECF No. 10, p. 53, Finding 3). Despite being severe, the ALJ determined these impairments did not meet or medically equal the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Part 404 (“Listings”). (ECF No. 10, pp. 53-54, Finding 4).

         The ALJ then considered Plaintiff's Residual Functional Capacity (“RFC”). (ECF No. 10, pp. 54-59, Finding 5). First, the ALJ evaluated Plaintiff's subjective complaints and found her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC to perform “light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except [she] needs a job with simple tasks and simple instructions.” Id. The ALJ then determined Plaintiff was unable to perform her Past Relevant Work (“PRW”). (ECF No. 10, p. 59, Finding 6). Based on Plaintiff's age, education, work experience, and RFC, the ALJ determined there were jobs existing in significant numbers in the national economy Plaintiff could perform, such as a fast food worker and a cleaner/housekeeper. (ECF No. 10, p. 60, Finding 10). The ALJ therefore determined Plaintiff had not been under a disability, as defined by the Act, from August 16, 2012, Plaintiff's alleged onset date, through December 3, 2014, the date of the ALJ's decision. (ECF No. 10, p. 60, Finding 11).

         Thereafter, on January 21, 2015, Plaintiff requested a review by the Appeals Council (ECF. No. 10, pp. 42-47). The Appeals Council denied this request on October 30, 2015. (ECF No. 10, pp. 5-11). On December 23, 2015, Plaintiff filed the present appeal with this Court. (ECF No. 1). The parties consented to the jurisdiction of this Court on January 8, 2016. (ECF No. 6). This case is now ready for decision.

         11. Applicable Law:

         This Court's role is to determine whether substantial evidence supports the Commissioner's findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). We must affirm the ALJ's decision if the record contains substantial evidence to support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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, we must affirm the ALJ's decision. Id.

         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), 1382c(a)(3)(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), 1382c(a)(3)(D). A Plaintiff must show that her disability, not simply her impairment, has lasted for at least twelve consecutive months.

         The Commissioner's regulations require her to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the claimant is able to perform other work in the national economy given his age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Only if she reaches the final stage does the fact finder consider Plaintiff's age, education, and work experience in light of his residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

         III. Discussion:

         Plaintiff raises five issues on appeal: 1) The ALJ failed to evaluate Plaintiff's subjective complaints in accordance with Polaski; 2) In light of evidence submitted to the Appels Council, the decision must be reversed because the record as a whole, including the new evidence, does not support the ALJ's determination; 3) The ALJ failed to reach an RFC determination which is based on substantial evidence; 4) The VE's testimony was based upon a hypothetical question that did not include all those impairments that are substantially supported by the record as a whole; and 5) The ALJ failed to fulfill his duty to develop the record by ordering a consultative examination. (ECF No. 11). Because I find the ALJ erred in his analysis of the ...


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