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Brown v. Berryhill

United States District Court, D. South Dakota, Northern Division

March 23, 2017

CHARNELL S. BROWN, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY; Defendant.

          OPINION AND ORDER

          CHARLES B. KORNMANN, UNITED STATES DISTRICT JUDGE

         Plaintiff brought this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of defendant's final decision denying plaintiffs claim for disability insurance benefits. I have conducted a de novo review of the record. I find that the Commissioner's decision is not supported by substantial evidence on the record as a whole.

         An individual is considered to be disabled if, inter alia, she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Accord, Bernard v. Colvin, 744 F.3d 482, 486 (8th Cir. 2014). An individual shall be determined to be disabled "only if [their] physical or mental impairment or impairments are of such severity that [they are] not only unable to do [their] previous work but cannot, considering [their] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).

         "To be eligible for disability insurance benefits, a claimant has the burden of establishing the existence of a disability under the Act." Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Judicial review of the Commissioner's decision that claimant has failed to establish by a preponderance of the evidence that he is disabled within the meaning of the Social Security Act is limited to determining whether the Commissioner's decision is supported by substantial evidence in the record as a whole. Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013). "Substantial evidence is less than a preponderance, but enough that a reasonable mind might find it adequate to support the Commissioner's conclusions." Draper v. Colvin, 779 F.3d 556, (8th Cir. 2015) (internal quotations omitted) (quoting Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007)). "We consider both evidence that detracts from the ALJ's decision, as well as evidence that supports it, but we will not reverse simply because some evidence supports a conclusion other than that reached by the ALJ." McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (internal citations omitted). "If, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [ALJ's] findings, the court must affirm the [ALJ's] decision." Pear sail v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).

         The ALJ used the familiar five-step sequential evaluation to determine disability:

In step one, the ALJ decides whether the claimant is currently engaging in substantial gainful activity; if the claimant is working, he is not eligible for disability insurance benefits. In step two, the ALJ determines whether the claimant is suffering from a severe impairment. If the claimant is not suffering a severe impairment, he is not eligible for disability insurance benefits. At the third step, the ALJ evaluates whether the claimant's impairment meets or equals one of the impairments listed in Appendix 1 of the regulations (the "listings"). If the claimant's impairment meets or equals one of the listed impairments, he is entitled to benefits; if not, the ALJ proceeds to step four. At step four, the ALJ determines whether the claimant retains the "residual functional capacity" (RFC) to perform his or her past relevant work. If the claimant remains able to perform that past relevant work, he is not entitled to disability insurance benefits. If he is not capable of performing past relevant work, the ALJ proceeds to step five and considers whether there exist work opportunities in the national economy that the claimant can perform given his or her medical impairments, age, education, past work experience, and RFC. If the Commissioner demonstrates that such work exists, the claimant is not entitled to disability insurance benefits.

McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (internal C.F.R. citations omitted).

         The ALJ determined at step one that plaintiff had not engaged in substantial gainful activity since February 16, 2012, although he acknowledged that she attempted to work until mid-July 2012.

         At step two, the ALJ determined that plaintiffs cervical and lumbar disc disease, thyroid disorder and history of migraine headaches represent severe impairments that more than minimally interfere with her ability to engage in basic work activities. The ALJ rejected any contention that plaintiffs lupus-like symptoms, claimed peripheral neuropathy, bilateral carpal tunnel syndrome, and depression or anxiety represent severe impairments.

         At step three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meets or medically equals a listed impairment.

         "Prior to step four, the ALJ must assess the claimant's residual functioning capacity ("RFC"), which is the most a claimant can do despite her limitations." Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009).

At this stage, the ALJ must determine the claimant's residual functional capacity (RFC), that is, what she can still do physically even with her impairments, and also the claimant's age, education, and relevant work experience-the latter three findings being referred to as vocational factors, as opposed to RFC, which is a medical factor.

Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010).

         The ALJ determined that plaintiff has the residual functional capacity to perform light work with some restrictions. Although the medical records showed she has medically determinable impairments, the ALJ rejected plaintiffs claimed intensity, persistence, and the limiting effects of her symptoms. He opined that her inconsistent reports of pain were patently out of proportion to the objective findings and were therefore not credible. He opined that "the record is fundamentally devoid of objective findings supportive of the ...


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