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Mickey v. Berryhill

United States District Court, W.D. Arkansas, Fort Smith Division

April 25, 2018

NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT



         Plaintiff, Diane A. Mickey, brings this action under 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 Title II of the Social Security Act (hereinafter “the Act”), 42 U.S.C. § 423(d)(1)(A). 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 filed her application for DIB on July 8, 2014, alleging an onset date of May 30, 2014, due to arthritis in her lower back with bulging disks, radiculopathy, and depression. (ECF No.11, pp. 73, 84, 178-179, 209, 224). On May 13, 2015, the ALJ held an administrative hearing. (ECF No. 11, pp. 33-71). Plaintiff was present and represented by counsel.

         On February 9, 2016, the ALJ concluded that the Plaintiff's lumbar degenerative disk disease (“DDD”) and obesity were severe, but concluded they did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. (ECF No. 11, pp. 18-20). He then found Plaintiff capable of performing sedentary work requiring only occasional climbing, balancing, crawling, kneeling, stooping, and crouching. (ECF No. 11, pp. 21-26). With the assistance of a vocational expert, the ALJ found the Plaintiff capable of returning to her PRW as a telephone customer service representative. (ECF No. 11, pp. 26-27).

         The Appeals Council denied the Plaintiff's request for review on April 20, 2017. (ECF No. 11, pp. 5-10). Subsequently, Plaintiff filed this action. (ECF No. 1). This matter is before the undersigned for report and recommendation. Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 12, 13).

         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 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). 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 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 his or 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 or her age, education, and experience. See 20 C.F.R. § 404.1520(a)(4). Only if he reaches the final stage does the fact finder consider the Plaintiff's age, education, and work experience in light of his or 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 essentially raises two issues on appeal: whether substantial evidence supports the ALJ's RFC determination and whether she can perform her PRW. Following a thorough review of the record, the undersigned agrees that the ALJ's RFC determination is not supported by substantial evidence.

         Plaintiff has an extensive history of treatment for lower back and thoracic pain. X-rays of her lumbar spine dated March 17, 2014, showed mild disc space narrowing and endplate spurring from the L2 level through the S1 level. (ECF No. 11, p. 323). Further, MRIs of her lumbar and thoracic spine, taken the following month, showed a vertebral hemangioma at the T12-L1 level, multilevel DDD with borderline canal stenosis at the L2-3 and L3-4 levels, a disc protrusion at the L3-4 level that might impact the exiting nerve root, relatively severe bilateral facet arthropathy at the L4-5 level, multilevel disc bulges at the T5- T11 levels, and a small to moderate right posterolateral disc protrusion at the T10-11 level. (ECF No. 11 at 319-322).

         Plaintiff underwent treatment via medication, physical therapy, epidural steroid injections, facet nerve blocks, and nerve ablation. Records, however, reveal only a temporary response to these conservative treatment measures with no long-term symptom resolution. Additionally, repeat physical exams documented a decreased range of motion and tenderness, particularly in the lumbar spine. Although the record does show relatively stable and non-progressive symptoms throughout the relevant time period, this merely indicates ...

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