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Melissa Yvette Fair v. Berryhill

United States District Court, W.D. Arkansas, Fayetteville Division

February 1, 2019

MELISSA YVETTE FAIR PLAINTIFF
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration DEFENDANT

          MEMORANDUM OPINION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Melissa Yvette Fair, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (Commissioner) denying her claim for supplemental security income (SSI) under the provision of Title XVI of the Social Security Act (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).

         I. Procedural Background:

         Plaintiff protectively filed her current application for SSI on October 5, 2015, alleging an inability to work since June 1, 2015, due to anxiety, depression, panic disorder, PTSD, and panic attacks. (Tr. 51, 68). An administrative hearing was held on September 14, 2016, at which Plaintiff appeared with counsel and testified. (Tr. 32-46). Barbara Hubbard, a Vocational Expert (VE), also testified. (Tr. 46-49).

         In a written opinion dated November 29, 2016, the Administrative Law Judge (ALJ) found that Plaintiff had severe impairments of major depression, anxiety, asthma, and obesity. (Tr. 12). However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff's impairment did not meet or equal the level of severity of any impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 13). The ALJ found that Plaintiff retained the residual functional capacity (RFC) to perform light work as defined in 20 CFR § 416.967(b) except that Plaintiff was “able to perform simple tasks with simple instructions. She must work in a controlled environment with no exposure to dust, fumes or smoke in concentrated amounts and no temperature extremes.” (Tr. 14). With the help of a vocational expert (VE), while the Plaintiff had no past relevant work, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as a price marking clerk, a mail routing clerk, or a library clerk. (Tr. 20-21).

         Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied that request on October 4, 2017. (Tr. 1-6). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 7). Both parties have submitted briefs, and the case is now ready for decision. (Docs. 12, 13).

         II. Applicable Law:

         This Court's role is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). 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. The ALJ's decision must be affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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, the decision of the ALJ must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).

         It is well-established that a claimant for Social Security disability benefits has the burden of proving his disability by establishing a physical or mental disability that has lasted at least one year and that prevents him 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), 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). A Plaintiff must show that his disability, not simply his 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 his 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 his age, education, and experience. See 20 C.F.R. § 413.920. Only if the final stage is reached does the fact finder consider the Plaintiff's age, education, and work experience in light of his 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. § 416.920.

         III. Discussion:

         Plaintiff argues the following issues on appeal: 1) the ALJ erred in affording “little weight” to ARNP Williams' medical opinion; and 2) the ALJ erred in his RFC determination by not accounting for Plaintiff's moderate limitations in daily living, social functioning, and concentration, persistence, or pace, which left the Step Five determination unsupported by substantial evidence. (Doc. 12).

         A. Subjective Complaints and Symptom Analysis:

         The ALJ was required to consider all the evidence relating to Plaintiff's subjective complaints including evidence presented by third parties that relates to: (1) Plaintiff's daily activities; (2) the duration, frequency, and intensity of his pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness, and side effects of his medication; and (5) functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While an ALJ may not discount a claimant's subjective complaints solely because the medical evidence fails to support them, an ALJ may discount those complaints where inconsistencies appear in the record as a whole. Id. As the Eighth Circuit has observed, “Our touchstone is that [a claimant's] credibility is primarily a matter for the ALJ to decide.” Edwards, 314 F.3d at 966.

         After reviewing the administrative record, it is clear that the ALJ properly considered and evaluated Plaintiff's subjective complaints, including the Polaski factors. In addressing Plaintiff's credibility, the ALJ noted Plaintiff's testimony at the hearing that she was unable to work due to her panic attacks, major anxiety, depression, and post-traumatic stress disorder. (Tr. 34-35). Plaintiff also testified that the side effects from her medications caused her to fall. (Tr. 36). Plaintiff testified that she had asthma that had worsened in in the last year with her weight gain. (Tr. 35). Plaintiff also testified that she had tinnitus. (Tr. 35). Plaintiff stated that she could drive a car; that she attended church and Celebrate recovery meetings regularly; that she went to the grocery store; that her hobbies included watching television and doing puzzles; that she could do some laundry; that she could walk her dogs: and that she would go to a friend's house to watch football games. She also testified that she had three to four bad days per week. (Tr. 44). On those days, she would stay in the recliner, watching television and working on puzzles. (Tr. 44). She claimed that her health declined in June of 2015 when she found out that her daughter had been sexually molested by her father. (Tr. 45).

         According to Plaintiff's Function Reports, she cared for her pets with assistance from her son; she had no problems with personal care; while her son did most of the cooking, she could prepare simple meals; she could do some laundry and cleaning; she could drive a car; she could shop in stores for food and clothing; she attended counseling, visited her friends' homes and went to church on a regular basis; and she assisted with teaching the three-year-old class at her church. (Tr. 189-196, 210-217). She reported that her attention span would vary; that she could sometimes finish what she started; and that she could follow written and spoken instructions with repetition. (Tr. 215-217).

         As for Plaintiff's physical impairments, the record demonstrates that Plaintiff's asthma had been treated conservatively for years with medication and that she had experienced some relief. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998); see Robinson v. Sullivan, 956 F.2d 836, 840 (8th Cir. 1992) (course of conservative treatment contradicted claims of disabling pain).

         The Court also notes that on one occasion, on February 16, 2016, Plaintiff reported that she had not been taking her Advair and was “just being lazy.” (Tr. 330). See Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004) (Plaintiff's failure to follow a prescribed course of ...


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