United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE
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).
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
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).
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.
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
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.
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.
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 ...