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Nicholson v. Berryhill

United States District Court, W.D. Arkansas, El Dorado Division

July 28, 2017

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

          MEMORANDUM OPINION

          HON. BARRY A. BRYANT, U.S. MAGISTRATE JUDGE

         Marsha Nicholson (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying her claim for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”) benefits under Titles II and XVI of the Social Security Act (“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. 5).[2] Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.

         1. Background:

         Plaintiff protectively filed her disability applications for DIB on June 17, 2013, and for SSI on June 18, 2013. (ECF No. 11, pp. 18). In her applications, Plaintiff alleges being disabled due to: hepatitis C; bulging and herniated discs in back; anxiety; chronic obstructive pulmonary disease (“COPD”), edema; vertigo; hyperlipidemia; neuropathy; and, depression. (ECF No. 11, p. 230). Plaintiff alleges an onset date of May 31, 2013. (ECF No. 11, pp. 18, 226). These applications were denied initially and again upon reconsideration. (ECF No. 11, pp. 55-118).

         Thereafter, Plaintiff requested an administrative hearing on her denied applications, and this hearing request was granted. (ECF No. 11, pp. 141-45). Plaintiff's administrative hearing was held on October 22, 2014, in Arkansas. (ECF No. 11, pp. 36-54). Plaintiff was present and was represented by Mike Sherman. Id. Plaintiff and VE Mac Welch testified at this hearing. Id. At the time of this hearing, Plaintiff was fifty-one (51) years old, which is defined as a “person closely approaching advanced age” under 20 C.F.R. §§ 404.1563(d), 416.963(d). (ECF No. 11, p. 40). As for her level of education, Plaintiff earned a high school diploma and completed classes to become a certified nursing assistant (“CNA”). Id.

         After this hearing, on February 26, 2015, the ALJ entered an unfavorable decision denying Plaintiff's applications for DIB and SSI. (ECF No. 11, pp. 15-28). In this decision, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2017. (ECF No. 11, p. 20, Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 31, 2013, her alleged onset date. (ECF No. 11, p. 20, Finding 2). The ALJ determined Plaintiff had the following severe impairments: mild lumbar degeneration, COPD, obesity, major depressive disorder, and post-traumatic stress disorder (“PTSD”). (ECF No. 11, pp. 20-21, 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. 11, pp. 21-23, Finding 4).

         The ALJ then considered Plaintiff's Residual Functional Capacity (“RFC”). (ECF No. 11, pp. 23-27, 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 is further limited in that she can occasionally stoop, crouch, crawl, and kneel. In addition, given her moderate limitations in social functioning and in terms of concentration, persistence, and pace, [Plaintiff] is able to perform work where interpersonal contact is routine but superficial, where the complexity of tasks are learned by experience with several variables, where judgment is within limits, and which involves little supervision for routine tasks and detailed supervision for non-routine tasks (i.e., [Plaintiff] is able to perform work at the semi-skilled level).

Id.

         The ALJ then determined Plaintiff was unable to perform her Past Relevant Work (“PRW”). (ECF No. 11, p. 27, Finding 6). The VE testified at the administrative hearing regarding this issue. (ECF No. 11, pp. 51-53). 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 personal care attendant, which has a DOT code of 309.674-014, with approximately three hundred thousand (300, 000) jobs in the national economy and four thousand (4, 000) jobs in the regional economy, and as a companion, which has a DOT code of 309.677-010, with approximately two hundred thousand (200, 000) jobs in the national economy and three thousand (3, 000) jobs in the regional economy. (ECF No. 11, pp. 27-28, Finding 10). Because jobs exist in significant numbers in the national economy which Plaintiff can perform, the ALJ also determined Plaintiff had not been under a disability, as defined by the Act, from May 31, 2013, through February 26, 2015, the date of the ALJ's decision. (ECF No. 11, p. 28, Finding 11).

         Thereafter, on February 18, 2015, Plaintiff requested review of the hearing decision by the Appeals Council. (ECF No. 11, pp. 12-14). The Appeals Council denied Plaintiff's request on March 30, 2016. (ECF No. 11, pp. 5-11). On April 25, 2016, Plaintiff filed the present appeal with this Court. (ECF No. 1). The Parties consented to the jurisdiction of this Court on April 26, 2016. (ECF No. 5). 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 ...


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