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Phifer v. Berryhill

United States District Court, E.D. Arkansas, Western Division

April 9, 2018

TISHA L. PHIFER PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT

          MEMORANDUM OPINION AND ORDER [1]

         I. Introduction:

         Plaintiff, Tisha L. Phifer, applied for disability benefits on November 25, 2013, alleging a disability onset date of July 31, 2013. (Tr. at 17). After conducting a hearing, the Administrative Law Judge (“ALJ”) denied her application. (Tr. at 26). The Appeals Council denied her request for review. (Tr. at 1). The ALJ's decision now stands as the final decision of the Commissioner, and Ms. Phifer has requested judicial review.

         II. The Commissioner=s Decision:

         The ALJ found that Ms. Phifer had not engaged in substantial gainful activity since the alleged onset date of July 31, 2013. (Tr. at 19). At Step Two of the sequential five-step analysis, the ALJ found that Ms. Phifer has the following severe impairment: degenerative disc disease. Id. The ALJ found that Ms. Phifer's impairment did not meet or equal a listed impairment. (Tr. at 20). Before proceeding to Step Four, the ALJ determined that Phifer had the residual functional capacity (“RFC”) to perform work at the sedentary level, except she would have to avoid constant, repetitive bending. Id.

         The ALJ next found that Ms. Phifer was able to perform past relevant work as a warehouse worker, waitress, and telemarketer. (Tr. at 25). The ALJ made an alternative finding at Step Five. He relied on the testimony of a Vocational Expert ("VE") to find that, considering Ms. Phifer's age, education, work experience and RFC, jobs existed in significant numbers in the national economy that she could perform. (Tr. at 25-26). Therefore, the ALJ found that Ms. Phifer was not disabled. Id.

         III. Discussion:

         A. Standard of Review The Court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and whether it is based on legal error. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see also 42 U.S.C. § 405(g). While “substantial evidence” is that which a reasonable mind might accept as adequate to support a conclusion, “substantial evidence on the record as a whole” requires a court to engage in a more scrutinizing analysis:

“[O]ur review is more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision; we also take into account whatever in the record fairly detracts from that decision.” Reversal is not warranted, however, “merely because substantial evidence would have supported an opposite decision.”

Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citations omitted).

         It is not the task of this Court to review the evidence and make an independent decision. Neither is it to reverse the decision of the ALJ because there is evidence in the record which contradicts his findings. The test is whether there is substantial evidence in the record as a whole which supports the decision of the ALJ. Miller, 784 F.3d at 477. The Court has reviewed the entire record, including the briefs, the ALJ's decision, and the transcript of the hearing.

         B. Ms. Phifer's Arguments on Appeal

         Ms. Phifer contends that substantial evidence does not support the ALJ's decision to deny benefits. She argues that: 1) the ALJ erred by not conducting the Psychiatric Review Technique (“PRT”); and 2) he did not give proper weight to the opinion of treating physician, Dr. Mike Umerah, M.D. After reviewing the record as a whole, the Court concludes that the ALJ did not err in denying benefits.

         The sparse record is made up almost entirely of records from Dr. Umerah. Ms. Phifer treated with him on a handful of occasions from 2012 to 2015. (Tr. at 270-315). She reported back pain, and Dr. Umerah found limited flexion and extension as well as lumbar tenderness. Id. He diagnosed degenerative disc disease and anxiety/depression. Id. He prescribed painkillers, and Ms. Phifer reported at almost all of the visits that her pain was at a level 2-3 with the aid of the medications. (Tr. at 275-304). Impairments that are controllable or amenable to treatment do not support a finding of total disability. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). On only one occasion, in August 2015, Ms. Phifer's pain rated a 9 out of 10. (Tr. at 329).

         Dr. Umerah did not order any objective imaging, and he did not suggest more than conservative treatment. Ms. Phifer did not see a pain specialist, undergo injections, or seek surgical intervention. The need for only conservative treatment contradicts ...


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