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Fusher v. Berryhill

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

January 24, 2019

LORI M. FUSHER PLAINTIFF
v.
NANCY A. BERRYHILL DEFENDANT Acting Commissioner, Social Security Administration

          MEMORANDUM OPINION

          HON. BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE.

         Lori M. Fusher (“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 application for Disability Insurance Benefits (“DIB”) 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. 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 her disability application on October 24, 2014. (Tr. 14). In her application, Plaintiff alleges being disabled due to bipolar disorder, borderline personality disorder, depression, post-traumatic stress disorder, bulging discs with annular tear, sciatica, a curved spine, arthritis, and nerve pain. (Tr. 204). Plaintiff alleges an onset date of September 14, 2009. (Tr. 14). At the administrative hearing in this matter, Plaintiff amended that alleged onset date to July 13, 2013. (Tr. 38-39). This application was denied initially and again upon reconsideration. (Tr. 89-127).

         Plaintiff requested an administrative hearing in this matter, and this hearing was held on January 14, 2016 in Fort Smith, Arkansas. (Tr. 30-68). At this hearing, Plaintiff was present and was represented by Fred Caddell. Id. Only Plaintiff and Vocational Expert (“VE”) Barbara Hubbard testified at this hearing. Id.

         After this administrative hearing, the ALJ entered a fully unfavorable decision on Plaintiff's application. (Tr. 11-24). In this decision, the ALJ found Plaintiff last met the insured status requirements of the Act on December 31, 2014. (Tr. 16, Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) during the period from her alleged onset date of September 14, 2009[1] through her date last insured of December 31, 2014. (Tr. 16, Finding 2). The ALJ determined that, through her date last insured, Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine; central disc bulge at ¶ 2-L3 with annular tear; bipolar II disorder; depression; history of alcohol abuse; personality disorder with borderline and dependent traits; and obesity. (Tr. 16, Finding 3). The ALJ also determined Plaintiff's impairments did not meet or medically equal the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 16-18, Finding 4).

         In this decision, the ALJ evaluated Plaintiff's subjective complaints and determined her RFC. (Tr. 18-23, Finding 5). First, the ALJ evaluated Plaintiff's subjective complaints and found her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the capacity to perform the following:

After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can perform work where interpersonal contact is incidental to the work performed, where the complexity of tasks is performed and learned by rote with few variables and little judgment, and where supervision required is simple, direct and concrete. The claimant can occasionally push, pull, kneel, and/or crouch. The claimant would require a sit/stand option to be exercised at one-hour intervals throughout the workday.

Id.

         The ALJ determined Plaintiff was forty-three (43) years old, which is defined as a “younger individual” under 20 C.F.R. § 404.1563(c), on her date last insured. (Tr. 23, Finding 7). The ALJ also determined Plaintiff had at least a high school education and was able to communicate in English. (Tr. 23, Finding 8).

         Considering her RFC, the ALJ determined that, through her date last insured, Plaintiff did not retain the capacity to perform any of her PRW. (Tr. 23, Finding 6). The ALJ then determined whether Plaintiff retained the capacity to perform other work existing in significant numbers in the national economy. (Tr. 23-24, Finding 10). The VE testified at the administrative hearing regarding this issue. Id.

         Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform the requirements of representative occupations such as the following: (1) hotel cleaner/housekeeper with approximately 1, 200 such jobs in the regional economy and 137, 000 such jobs in the national economy; (2) marking clerk with approximately 2, 400 such jobs in the regional economy and 283, 200 such jobs in the national economy; and (3) routing clerk with approximately 540 such jobs in the regional economy and 53, 000 such jobs in the national economy. (Tr. 24). 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) at any time from September 14, 2009 (her alleged onset date) through December 31, 2014 (her date last insured). (Tr. 24, Finding 11).

         Plaintiff then requested the Appeals Council's review of this unfavorable decision. (Tr. 5-7. On December 13, 2017, the Appeals Council denied this request for review. Id. Then, on January 8, 2018, Plaintiff filed her Complaint in this action. ECF No. 1. Both Parties have filed appeal briefs and have ...


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