United States District Court, W.D. Arkansas, Harrison Division
VALERIE A. ROSS PLAINTIFF
ANDREW M. SAUL, Commissioner Social Security Administration DEFENDANT
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE.
Valerie A. Ross, 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 claims for period of disability
and disability insurance benefits (DIB) and supplemental
security income (SSI) benefits under the provisions of Titles
II and 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. §
protectively filed her current applications for DIB and SSI
on April 26, 2016, alleging an inability to work since June
1, 2006,  due to neck pain and mobility problems;
right leg pain and mobility problems; lower back pain and
mobility problems; very anxious and confused in crowds; hard
time remembering; inability to run; and inability to stand
for long periods of time. (Tr. 399, 535, 542). An
administrative hearing was held on September 12, 2017, at
which Plaintiff appeared with counsel and testified. (Tr.
written decision dated February 23, 2018, the ALJ found that
during the relevant time period, Plaintiff had an impairment
or combination of impairments that were severe. (Tr. 341).
Specifically, the ALJ found Plaintiff had the following
severe impairments: degenerative disc disease of the cervical
spine and a disorder of the lumbar spine. However, after
reviewing all of the evidence presented, the ALJ determined
that Plaintiff's impairments 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. 344). The ALJ found Plaintiff retained the residual
functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except the claimant can occasionally reach
(Tr. 345). With the help of a vocational expert, the ALJ
determined Plaintiff could perform work as a document
preparer, an addresser and a table worker/inspector. (Tr.
then requested a review of the hearing decision by the
Appeals Council, which after reviewing additional evidence
submitted by Plaintiff, denied that request on July 26, 2018.
(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 filed
appeal briefs, and the case is now ready for decision. (Docs.
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
well established that 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); see
also 42 U.S.C. § § 423(d)(1)(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 her disability, not
simply her impairment, has lasted for at least twelve
Commissioner's regulations require him 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. See 20 C.F.R.
§§ 404.1520, 416.920. Only if the final stage is
reached does the fact finder consider the Plaintiff's
age, education, and work experience in light of her 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. §§ 404.1520, 416.920.
the Appeals Council has considered material new evidence and
nonetheless declined review, the ALJ's decision becomes
the final action of the Commissioner. The Court then has no
jurisdiction to review the Appeals Council's action
because it is a nonfinal agency action. See Browning v.
Sullivan,958 F.2d 817, 822 (8th Cir. 1992). At this
point, the Court's task is only to decide whether the
ALJ's decision is supported by substantial evidence in
the record as a whole, including the new evidence made part
of the record by the Appeals Council that was not before the
ALJ. As the United States Court of Appeals for the Eighth
Circuit has noted, "this [is] a peculiar task for a
reviewing court." Riley v. Shalala, 18 F.3d
619, 622 (8th Cir.1994). However, once it is clear that the
Appeals Council considered the new evidence, the Court must
factor in the evidence and determine whether the ALJ's
decision is still supported by substantial evidence. This
requires the Court to speculate on ...