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Iames v. Berryhill

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

June 13, 2018

KIMBERLEY D. IAMES 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, Kimberley Iames, 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 January 15, 2015, alleging an onset date of July 3, 2013, due to chronic pain resulting from neck reconstruction surgery and complete right rotator cuff repair; nerve problems in the elbows, wrists, and right ankle; and, depression. (ECF No. 10, pp. 71, 169-175, 188, 209-210). On October 21, 2015, the ALJ held an administrative hearing. (ECF No. 10, pp. 34-69). Plaintiff was present and represented by counsel.

         In 2015, Plaintiff was 45 years old and possessed a high school education and an Associate's Degree in Accounting and Science. (ECF No. 10, p. 40-41). Plaintiff had past relevant work (“PRW”) experience as a pharmacy manager and bookkeeper. (ECF No. 10, p. 200-207, 257).

         By a written decision dated February 10, 2016, the ALJ determined Plaintiff's degenerative disk disease (“DDD”) of the cervical spine; herniated nucleus pulposus C5-C6 and C6-C7 levels, status post laminectomy/fusion surgery; status post right rotator cuff repair; epicondylitis of the right elbow; migraines; and, depression were severe, but did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. (ECF No. 10, p. 16). After discounting the Plaintiff's credibility, he found that Plaintiff retained the residual functional capacity (“RFC”) to perform sedentary work involving only occasional overhead reaching and requiring simple tasks and simple instructions. (ECF No. 10, p. 18). With the assistance of a vocational expert, the ALJ determined Plaintiff could perform work as a small product assembler, document preparer, and escort vehicle driver. ECF No. 10, pp. 27).

         The Appeals Council denied the Plaintiff's request for review on June 19, 2017. (ECF No. 10, 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. 15, 16).

         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 several issues on appeal, including a question as to the supportability of the ALJ's RFC determination. The ALJ concluded Plaintiff could perform sedentary work involving only occasional overhead reaching and requiring simple tasks and simple instructions. For the reasons detailed below, the undersigned finds that this RFC does not adequately account for all the Plaintiff's limitations.

         The Plaintiff suffers from numerous severe physical impairments, including DDD of the cervical spine; herniated nucleus pulposus at the C5-C6 and C6-C7 levels, status post fusion surgery; shoulder pain, status post right rotator cuff repair; epicondylitis of the right elbow; and, migraine headaches. In fact, orthopedic surgeon, Dr. Joseph Bylak, indicated he had operated on her right shoulder “several times” prior to the relevant period. (ECF No. 10, p. 531). And, the record evidences that Dr. Christopher Arnold operated on her shoulder twice during the relevant period. In May 2014, he repaired a torn rotator cuff, labral tear, and torn bicep tendon in the right upper extremity. (ECF No. 10, pp. 503-507). Despite physical therapy and corticosteroid injections, he had to perform arthroscopic rotator cuff revision surgery in September 2015. (ECF No. 10, pp. 664-667). As ...


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