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Nicklaw v. Berryhill

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

September 8, 2017

CARLA J. PARISH NICKLAW PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration[1]DEFENDANT

          MEMORANDUM OPINION

          HON. ERIN L. WIEDEMANN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Robin L. Strawhacker, 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 and disability insurance benefits (“DIB”) under the provisions of Title II 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 November 6, 2013. (ECF No. 9, p. 17). In her application, Plaintiff alleges disability due to degenerative spondylosis, degenerative disc disease of the thoracic and lumbar spines, attention-deficit/hyperactivity disorder (“ADHD”), mild depression, obesity, scoliosis, and changes in height. (ECF No. 9, p. 210). Plaintiff alleges an amended onset date of May 21, 2011. (ECF No. 9, pp. 56, 206). These applications were denied initially. (ECF No. 9, pp. 17, 80-90).

         Thereafter, Plaintiff requested an administrative hearing on her denied application, and this hearing request was granted. (ECF No. 9, pp. 122-38). Plaintiff's administrative hearing was held on August 11, 2015, in Syracuse, New York (ECF No. 9, pp. 52-79). Plaintiff appeared via teleconference and was represented by Peter Walton. Id. Plaintiff testified at this hearing. Id. At the time of this hearing, Plaintiff was thirty-three (33) years old, which is defined as a “younger person” under 20 C.F.R. §§ 404.1563(c). As for her level of education, Plaintiff completed the tenth grade and later earned her GED. (ECF No. 9, p. 58).

         After this hearing, on October 9, 2015, the ALJ entered an unfavorable decision denying Plaintiff's application for DIB. (ECF No. 9, pp. 14-32). In this decision, the ALJ found Plaintiff last met the insured status requirements of the Act through September 30, 2016. (ECF No. 9, p. 19, Finding 1). The ALJ also found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 21, 2011, Plaintiff's amended alleged onset date. (ECF No. 9, p. 19, Finding 2). The ALJ determined Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, degenerative disc disease of the thoracic spine, and fibromyalgia. (ECF No. 9, pp. 19-21, 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. 9, p. 22, Finding 4).

         The ALJ then considered Plaintiff's Residual Functional Capacity (“RFC”). (ECF No. 9, pp. 22-25, Finding 5). First, the ALJ evaluated Plaintiff's subjective complaints and found his 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) except she can only perform postural activities occasionally” Id. The ALJ then determined Plaintiff was able to perform her Past Relevant Work (“PRW”) as a gambling broker. (ECF No. 9, pp. 25-26, Finding 6). The ALJ therefore determined Plaintiff had not been under a disability, as defined by the Act, from May 21, 2011, Plaintiff's alleged onset date, through October 9, 2015, the date of the ALJ's decision. (ECF No. 9, p. 26, Finding 7).

         Thereafter, on November 24, 2015, Plaintiff requested a review by the Appeals Council (ECF. No. 9, pp. 11-13). The Appeals Council denied this request on January 29, 2016. (ECF No. 9, pp. 5-10). On March 2, 2016, Plaintiff filed the present appeal with this Court. (ECF No. 1). The parties consented to the jurisdiction of this Court on March 3, 2016. (ECF No. 5). This case is now ready for decision.

         II. 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 him 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). 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). A Plaintiff must show that her disability, not simply his 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). Only if she reaches the final stage does the fact finder consider Plaintiff's age, education, and work experience in light of her 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).

         III. Discussion:

         Plaintiff raises two issues on appeal: 1) the ALJ erred in failing to find Plaintiff's mental impairments of depression, bipolar disorder, and adjustment disorder severe, and; 2) the ALJ ...


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