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McChord v. Berryhill

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

December 15, 2017

KAREN MCCHORD PLAINTIFF
v.
NANCY BERRYHILL Commissioner, Social Security Administration DEFENDANT

          MEMORANDUM OPINION

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

         Karen McChord (“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”) and Supplemental Security Income (“SSI”) under Titles II and XVI 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 applications for DIB and SSI were filed in July 2013. (Tr. 29). Plaintiff alleged she was disabled due to due to a broken wrist, knee pain, obesity, and deafness in right ear. (Tr. 348). Plaintiff alleged an onset date of January 27, 2011. (Tr. 20). These applications were denied initially and again upon reconsideration. Id. Thereafter, Plaintiff requested an administrative hearing on her applications and this hearing request was granted. (Tr. 258).

         Plaintiff's administrative hearing was held on May 13, 2015. (Tr. 45-106). Plaintiff was present and was represented by counsel, Greg Giles, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Harris Rowzie testified at this hearing. Id. At the time of this hearing, Plaintiff was fifty-five (55) years old and was a high school graduate, with some college. (Tr. 52-55).

         On November 20, 2015, the ALJ entered an unfavorable decision denying Plaintiff's applications for DIB and SSI. (Tr. 20-38). In this decision, the ALJ determined the Plaintiff met the insured status requirements of the Act through June 30, 2013. (Tr. 23, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) from January 27, 2011, her alleged onset date, through December 27, 2013. (Tr. 23, Finding 2).

         The ALJ determined Plaintiff had the severe impairments of status-post right wrist fracture, hearing loss, obesity, anxiety disorder, and affective disorder. (Tr. 23, Finding 3). The ALJ then determined prior to December 28, 2013, 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. 24, Finding 4).

         In this decision, the ALJ evaluated Plaintiff's subjective complaints and determined her RFC. (Tr. 28-36). 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 to perform light work including lifting, carrying, pushing, and pulling 20 pounds occasionally and 10 pounds frequently; sit, stand, or walk for 6 hours in an 8-hour workday; can handle with her right upper extremity; can frequently kneel, crouch, and crawl; understand, remember, and carry out simple, routine tasks; use judgment to make simple work-related decisions; ability to deal with changes in a work setting was limited to simple work-related decisions; occasional interaction with supervisors and coworkers, but no public contact; and time off task is accommodated by normal breaks. Id.

         The ALJ evaluated Plaintiff's Past Relevant Work (“PRW”). (Tr. 36, Finding 6). The ALJ found Plaintiff was unable to perform her PRW from January 27, 2011, through December 27, 2013. Id. The ALJ, however, also determined there was other work existing in significant numbers in the national economy Plaintiff could perform from January 27, 2011, through December 27, 2013. (Tr. 37, 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 representative occupations such as polish cleaner with 394, 000 such jobs in the nation, bar attendant with 495, 000 such jobs in the nation, and marker with 180, 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 January 27, 2011, through December 27, 2013. (Tr. 38, Finding 11).

         Thereafter, Plaintiff requested the Appeals Council review the ALJ's decision. (Tr. 6). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-3). On November 18, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on November 23, 2016. ECF No. 7. Both Parties have filed appeal briefs. ECF Nos. 11, 14. 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 and (B) in assessing Plaintiff's RFC. ECF No. 11, Pgs. 3-17. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 14.

         A. Listings

         The ALJ must determine whether Plaintiff has a severe impairment that significantly limits the physical or mental ability to perform basic work activities. A medically determinable impairment or combination of impairments is severe if it significantly limits an individual's physical or mental ...


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