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Moore v. Berryhill

United States District Court, E.D. Arkansas, Northern Division

April 18, 2019

TINA MOORE PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT

          RECOMMENDED DISPOSITION

          JEROME T. KEARNEY, UNITED STATES MAGISTRATE JUDGE

         INSTRUCTIONS

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge James Moody. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         REASONING FOR RECOMMENDED DISPOSITION

         Tina Moore applied for social security disability benefits with an amended alleged onset date of April 12, 2016. (R. at 32). After a hearing, the administrative law judge (ALJ) denied her application. (R. at 19). The Appeals Council denied Moore's request for review. (R. at 1). The ALJ's decision now stands as the Commissioner's final decision, and Moore has requested judicial review.

         For the reasons stated below, the magistrate judge recommends affirming the Commissioner's decision.

         I. The Commissioner's Decision

         The ALJ found that Moore had the severe impairments of affective disorder and anxiety disorder. (R. at 12). In determining Moore's residual functional capacity (RFC), the ALJ found that Moore could perform work at all exertional levels but would be limited to simple, routine, and repetitive tasks; simple, work-related decisions; interpersonal contact that is incidental to the work performed; and supervision that is simple, direct, and concrete. (R. at 14). Moore had no past relevant work. (R. at 18). The ALJ took testimony from a vocational expert (VE) and determined that Moore could perform jobs such as hand packer, housekeeper, or addresser. (R. at 19). The ALJ therefore held that Moore was not disabled. (R. at 19).

         II. Discussion

         Moore argues that the ALJ erred in weighing the opinion of her treating psychiatrist. For the reasons stated below, Moore's argument must fail.

         The Court is to affirm the ALJ's decision if it is supported by “substantial evidence in the record as a whole, ” which is more than a scintilla but less than a preponderance. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009). Even if it is possible to draw two inconsistent positions from the evidence, the Court must affirm if one of those positions represents the ALJ's findings. Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015). The Court considers evidence supporting and evidence detracting from the Commissioner's decision, but it will not reverse simply because substantial evidence could support a different outcome. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000).

         Whatever weight the ALJ gives to a treating physician's opinion, the ALJ must give good reason for giving the opinion that weight. Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008). Thomas Zurkowski, M.D. opined that Moore had no usable ability to remember locations and work procedures; understand, remember, and carry out short, simple instructions; maintain attention and concentration for eight hours; sustain an ordinary routine without daily supervision; work with or near others without being distracted; to be on time and complete a normal workday or workweek without excessive absences due to psychologically based symptoms; interact appropriately with the public; accept instructions and criticism from supervisors; get along with coworkers and peers, and maintain socially appropriate behavior. (R. at 405). Dr. Zurkowski found that Moore would have unreliable performance in dealing with typical work stress. (R. at 405). Dr. Zurkowski also indicated that Moore would miss more than three days of work per month, could not reliably pay her bills, and was at risk of impulsive acts with dire financial consequences. (R. at 405).

         This opinion contrasts sharply with the opinion of consultative examiner Vickie Caspall, Ph.D., who opined that Moore was capable of adequate, socially appropriate communication and interaction; had the capacity to communicate in an intelligible and effective manner; had adequate verbal comprehension; below average mental flexibility; showed the ability to concentrate and showed adequate working memory; showed no signs of difficulty with persistence; and did not display remarkable psychomotor or cognitive slowing. (R. at 382-83).

         Further detracting from the credibility of Dr. Zurkowski's opinion, treatment records do not indicate the extreme limitations of the opinion. On April 13, 2017, she reported increased mood stability and that treatment was helping. (R. at 386). While there are records of more severe symptoms, those records pre-date the alleged onset date. (R. at 260, 285). More recent records indicate that she has responded well to medications and has had a decrease in symptoms. (R. at 397). These inconsistencies between the medical opinions and the medical ...


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