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Lee v. Berryhill

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

January 10, 2019

MARY ELIZABETH LEE PLAINTIFF
v.
NANCY A. BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT

          MEMORANDUM OPINION

          HON. BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE

         Mary Elizabeth Lee (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying her deceased husband Steve Allen Lee's[1] application for Disability Insurance Benefits (“DIB”) and a period of disability under Title II 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.[2] Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.

         1. Background:

         Plaintiff protectively filed his disability application on September 18, 2015. (Tr. 18). In his application, Plaintiff alleges he is disabled due to an on-the-job injury to his lower back, shoulder, and neck. (Tr. 199). Plaintiff alleges an onset date of July 28, 2015. (Tr. 18). This application was denied initially and again upon reconsideration. (Tr. 80-101).

         Plaintiff requested an administrative hearing on his denied application. (Tr. 110-111). This hearing request was granted, and Plaintiff's hearing was held on August 30, 2016 in Fort Smith, Arkansas. (Tr. 32-79). At this hearing, Plaintiff was present and was represented by counsel, Iva Neil Gibbons. Id. Plaintiff and Vocational Expert (“VE”) Dr. Deborah Steele testified at this hearing. Id.

         After this hearing, the ALJ entered an unfavorable decision denying his disability application. (Tr. 15-31). In this decision, the ALJ determined Plaintiff met the insured status requirements of the Act through December 31, 2019. (Tr. 20, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since July 28, 2015, his alleged onset date. (Tr. 20, Finding 2). The ALJ determined Plaintiff had the following severe impairments: thoracic and lumbar degenerative disc disease; and residuals of a remote left shoulder injury. (Tr. 20, Finding 3). Despite being severe, the ALJ also determined Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 20-21, Finding 4).

         The ALJ determined Plaintiff had a high school education and was able to communicate in English. (Tr. 25, Finding 8). The ALJ also determined Plaintiff was fifty-three (53) years old, which is defined as an “person closely approaching advanced age” under 20 C.F.R. § 404.1563(d) (2008) on his alleged disability onset date. (Tr. 25, Finding 7).

         In this decision, the ALJ evaluated Plaintiff's subjective complaints and determined his RFC. (Tr. 21-24, Finding 5). First, the ALJ evaluated Plaintiff' subjective complaints and found they were not entirely credible. Id. Second, the ALJ determined Plaintiff had the following RFC:

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he is able to perform occasional overhead reaching with his left arm.

Id.

         The ALJ then evaluated Plaintiff's Past Relevant Work (“PRW”) and determined Plaintiff was unable to perform any of his PRW. (Tr. 25, Finding 6). The ALJ also considered whether Plaintiff retained the capacity to perform other work existing in significant numbers in the national economy. (Tr. 25-26, Finding 10). The VE testified at the administrative hearing regarding this issue. Id. Based upon that testimony, the ALJ found Plaintiff retained the capacity to perform work as a case aide (semi-skilled) with 136, 980 such jobs in the nation; membership solicitor (semi-skilled) with 147, 980 such jobs in the nation; and telephone bill collector (semi-skilled) with 114, 130 such jobs in the nation. Because Plaintiff retained the capacity to perform this other work, the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from July 28, 2015 through the date of his decision or through November 3, 2016. (Tr. 26, Finding 11).

         Plaintiff sought review with the Appeals Council. On September 8, 2017, the Appeals Council denied this request for review. (Tr. 1-7). On November 1, 2017, Plaintiff filed a Complaint in this matter. ECF No. 1. Both Parties have filed appeal briefs and have consented to the jurisdiction of this Court. ECF Nos. 7, 12-13. This case is now ready for determination.

         2. Ap ...


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