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Prophet v. Berryhill

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

June 6, 2018

SUSAN L. PROPHET PLAINTIFF
v.
NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Susan Prophet, brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of 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 April 23, 2014, alleging an onset date of April 5, 2013, due to arthritis in the spine, degenerative disk disease (“DDD”) of the lumbar spine, herniated and bulging disks, dyspnea, a bad right knee, peripheral neuropathy in the spine, degenerative joint disease (“DJD”) in the right knee, cholesterol issues, a bad left hip, and depression. (ECF No. 8, pp. 75, 91-92, 162-168, 197, 215-216). On August 7, 2015, the ALJ held an administrative hearing. (ECF No. 8, p. 31-73). Plaintiff was present and represented by counsel.

         By a written decision dated March 9, 2016, the ALJ determined Plaintiff's DDD, hyperlipidemia, coronary artery disease (“CAD”), obesity, and affective disorder were severe, but did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. (ECF No. 8, p. 18). After discounting the Plaintiff's credibility, he found that Plaintiff retained the residual functional capacity (“RFC”) to perform light work involving occasional stooping and crouching; routine, but superficial interpersonal contact; and, tasks learned by experience and requiring limited judgment. (ECF No. 8, p. 20). The ALJ also concluded Plaintiff would require little supervision for routine tasks, but detailed supervision for non-routine tasks. With the assistance of a vocational expert, then ALJ determined the Plaintiff capable of returning to her PRW as a bottling line attendant and liquor inspector. (ECF No. 8, pp. 22-23).

         The Appeals Council denied the Plaintiff's request for review on February 17, 2017. (ECF No. 8, pp. 5-8). 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. 9, 12).

         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 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 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 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 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 four issues on appeal: (1) Whether the ALJ failed to fully and fairly develop the record; (2) Whether the ALJ erred in his credibility assessment; (3) Whether the ALJ's RFC determination is supported by substantial evidence; and, (4) Whether the ALJ erred at Step Four by concluding the Plaintiff could return to her past relevant work (“PRW”) because said PRW was a composite job. After reviewing the record, the undersigned agrees that the ALJ's RFC determination lacks substantial support in the record.

         The record reveals a history of lower back pain resulting from a job-related injury in 2004. Although seven years prior to the relevant time period, a 2005 MRI of the Plaintiff's pelvis showed some disk bulging at the L5-S1 level and some possible asymmetry of the levator musculature, with the right side smaller than the left. (ECF No. 8, p. 495).

         In February 2012, Plaintiff underwent a general physical exam with Dr. Clifford Evans. (ECF No. 8, pp. 273-277). Dr. Evans noted a decreased range of motion in the lumbar spine, and although straight leg raise tests were negative bilaterally, she did experience pain in the lower back when lifting the right leg. Dr. Evans diagnosed DDD in the lumbosacral spine, peripheral neuropathy in the lumbosacral spine, DJD in the right knee, ...


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