McPherson v. Berryhill

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Rebecca McPherson, brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision of the Commissioner of Social Security Administration (the “Commissioner”) denying her claim for a period of disability, disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under the provisions of Titles II and XVI of the Social Security Act (the “Act”). 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).

         PROCEDURAL BACKGROUND

         Plaintiff filed her applications for SSI and DIB on February 10, 2015, due to arthritis in her left shoulder and left knee, degenerative joint disease, right knee cap problems, carpel tunnel in both hands, degenerative back problems, right foot Achilles tendonitis, high blood pressure, and anxiety. (ECF No. 12, pp. 29, 303). Plaintiff alleged an onset date of November 20, 2005. (Id.). The ALJ noted Plaintiff was found not disabled by a previous Administrative Law Judge decision dated January 13, 2014, and that decision had not been appealed, making the period at issue in this decision from January 14, 2014 to October 6, 2016. (Id., p. 29). Her claims were denied initially on April 3, 2015, and upon reconsideration on July 17, 2015. (Id., pp. 13, 92, 96). An administrative hearing was held on August 3, 2016, before the Hon. Edward M. Starr. (Id., p. 49). Plaintiff appeared in person and was represented by counsel, John Seidlitz. (Id.). A vocational expert (“VE”), Deborah Steele, also testified at the hearing. (Id.).

         By written decision dated October 6, 2016, the ALJ found Plaintiff's obesity, degenerative joint disease, degenerative disc disease, hypertension, and shoulder and knee problems to be severe, but that Plaintiff's impairments did not meet or equal the level of severity of any impairment listed in the Listing of Impairments. (Id., p. 31). The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to:

perform sedentary work as defined in 20 C.F.R. §404.1567(a) and 416.967(a), except she is limited to occasional climbing, balancing, crawling, kneeling, stooping and crouching; and occasional overhead reaching bilaterally.

(Id., p. 33-40).

         With the assistance of the VE, the ALJ then determined Plaintiff would be unable to perform any past relevant work (Id., p. 40); however, the ALJ found Plaintiff could perform the requirements of the representative occupations of: Call Out Operator (DOT No. 237.36-014), with 14, 950 jobs in the national economy; Surveillance System Monitor (DOT No. 379.367-010), with 16, 030 jobs in the national economy; or, Document Preparer (DOT No. 249.587-018), with 92, 785 jobs in the national economy. (Id., p. 20). The ALJ also found Plaintiff could perform work at the semi-skilled level such as: Telephone Solicitor (DOT No. 299.357-014), with 242, 430 jobs in the national economy; Information Clerk (DOT No. 237.367-022), with 623, 160 jobs in the national economy; or, Insurance Clerk (DOT No. 219.367-014), with 135, 568 jobs in the national economy. (Id.). The ALJ found Plaintiff had not been disabled under the definition of the Act from January 14, 2014 through the date of his decision. (Id.).

         On October 10, 2017, the Appeals Council denied Plaintiff's request for review. (Id., pp. 6-11). Plaintiff then filed this action. (ECF No. 1). This matter is before the undersigned for report and recommendation. Both parties have filed appeal briefs. (ECF Nos. 15, 16). The case is ready for decision.

         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). If 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); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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), 1382c(a)(3)(D). A Plaintiff must show that her disability, not simply her impairment, has lasted for at least 12 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. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Only upon reaching the final stage does the fact-finder consider the Plaintiff's age, education, work experience and residual functional ...