Green v. Social Security Administration Commissioner

IN UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

EVA J. GREEN PLAINTIFF

vs. Civil No. 1:16-cv-01068

CAROLYN W. COLVIN DEFENDANT

Commissioner, Social Security Administration

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Eva J. Green (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social

Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of

the Commissioner of the Social Security Administration (“SSA”) denying her applications for

Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”) under Titles II and

XVI of the Act.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Susan O.

Hickey referred this case to this Court for the purpose of making a report and recommendation. In

accordance with that referral, and after reviewing the arguments in this case, this Court recommends

Plaintiff’s case be AFFIRMED.

1. Background:

Plaintiff protectively filed her disability applications on December 18, 2008. (Tr. 238-249).

In these applications, Plaintiff alleges being disabled due to problems with her left leg, bad

headaches, cellulitis, and vision problems. (Tr. 277). Plaintiff alleges an onset date of January 18,

2008. (Tr. 277). Her applications were denied initially and again upon reconsideration. (Tr. 111-

114).

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Thereafter, Plaintiff requested an administrative hearing, and that hearing request was

granted. (Tr. 158-164). After making this request, Plaintiff’s first administrative hearing was held

on April 8, 2010 in El Dorado, Arkansas. (Tr. 68-110). Thereafter, the ALJ held a second

administrative hearing on August 22, 2012 in El Dorado, Arkansas. (Tr. 33-67). After those

administrative hearings, the ALJ entered an unfavorable decision denying Plaintiff’s applications for

disability benefits. (Tr. 9-24). In this decision, the ALJ found Plaintiff could not perform her Past

Relevant Work (“PRW”) but could perform other work existing in significant numbers in the

national economy. Id.

Plaintiff appealed that unfavorable decision to this Court, and Plaintiff’s case was reversed

and remanded because the ALJ’s disability determination was not supported by substantial evidence

in the record. See Green v. SSA, 1:13-cv-01095, ECF Nos. 18-19 (W.D. Ark. 2014). Notably, the

Court determined the ALJ had improperly relied at Step Five upon the testimony of a vocational

expert which conflicted with the Dictionary of Occupational Titles. Id. Because of this error, as

recognized by the Court, the ALJ’s disability determination was not supported by substantial

evidence in the record. Id.

After this remand, the ALJ held a third administrative hearing on January 19, 2016. (Tr. 938-

960). At this hearing, Plaintiff was present and was represented by counsel, Randolph Baltz. Id.

Plaintiff and Medical Expert (“ME”) Kweli Amusa testified at this hearing. Id. During this third

hearing, Plaintiff testified she was fifty-one (51) years old, which is defined as a “person closely

approaching advanced age” under 20 C.F.R. § 416.963(d) (“SSI”). (Tr. 947). As for her education,

Plaintiff also testified she had obtained her GED. Id.

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On March 16, 2016, the ALJ again entered a fully unfavorable decision denying Plaintiff’s

disability applications. (Tr. 912-928). In this decision, the ALJ found Plaintiff met the insured

status requirements of the Act through December 31, 2013. (Tr. 917, Finding 1). The ALJ found

Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since August 1, 2009 (her

amended alleged onset date). (Tr. 917, Finding 2). The ALJ found Plaintiff had the following severe

impairments: dextroscoliosis of the lumbar spine, degenerative disc disease of the lumbar spine,

degenerative disc disease of the cervical spine, and obesity. (Tr. 917-921, Finding 3). Despite being

severe, the ALJ determined those impairments did not meet or medically equal the requirements of

any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”).

(Tr. 921-922, Finding 4).

In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her

Residual Functional Capacity (“RFC”). (Tr. 922-926, Finding 5). First, the ALJ evaluated

Plaintiff’s subjective complaints and found her claimed limitations were not entirely credible. Id.

Second, the ALJ determined Plaintiff retained the RFC to perform the following:

After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform the full range of light work

as defined in 20 CFR 404.1567(b) and 416.967(b).

Id.

The ALJ then evaluated Plaintiff’s PRW. (Tr. 926-927, Finding 6). Specifically, considering

her RFC, the ALJ determined Plaintiff was capable of performing her PRW as an office manager.

Id. As such, because Plaintiff retained the ability to perform her PRW as an office manager, the ALJ

determined she had not been under a disability (as defined in the Act) from August 1, 2009 through

the date of her decision or through March 16, 2016. (Tr. 927, Finding 7).

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The Appeals Council did not assume jurisdiction of this case. Thereafter, on July 14, 2016,

Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 18-

19. This case is now ready for decision.

2. Applicable Law:

In reviewing this case, this Court is required to determine whether the Commissioner’s

findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)

(2010); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than

a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to

support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).

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. See

Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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. See 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 or her disability by establishing a physical or mental disability that lasted at least one

year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,

160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines

a “physical or mental impairment” as “an impairment that results from anatomical, physiological,

or psychological abnormalities which are demonstrable by medically acceptable clinical and

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laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A plaintiff must show that

his or her disability, not simply his or her impairment, has lasted for at least twelve consecutive

months. See 42 U.S.C. § 423(d)(1)(A).

To determine whether the adult claimant suffers from a disability, the Commissioner uses

the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently

engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that

significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)

whether the claimant has an impairment that meets or equals a presumptively disabling impairment

listed in the regulations (if so, the claimant is disabled without regard to age, education, and work

experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his

or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to

the Commissioner to prove that there are other jobs in the national economy that the claimant can

perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers

the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this

analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).

3. Discussion:

In her appeal brief, Plaintiff raises the following four arguments for reversal: (A) the ALJ

erred by failing to comply with the previous district court’s remand order; (B) the ALJ erred in

assessing her RFC; (C) the ALJ erred in evaluating her credibility; and (D) the ALJ erred in

assessing her ability to work. ECF No. 18 at 1-15. The Court will address each of these arguments.

A. Previous District Court Order

Plaintiff claims this case must be reversed and remanded because the current ALJ failed to

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comply with this Court’s remand instructions.1 See Green v. SSA, 1:13-cv-01095, ECF Nos. 18-19

(W.D. Ark. 2014). Specifically, Plaintiff claims the second administrative opinion wherein the ALJ

found Plaintiff could perform her PRW was in conflict with the first administrative opinion wherein

the ALJ found Plaintiff could not perform her PRW. ECF No. 18 at 4-9. Plaintiff claims that the

determination of whether she could perform her PRW was decided in the first administrative

decision and cannot be changed in the second administrative decision. Id.

Upon review of Plaintiff’s argument, the Court disagrees. When the first administrative

decision was appealed to this Court, the only issued addressed was whether the ALJ’s Step Five

determination was supported by substantial evidence, and the Court found it was not. See Green v.

SSA, 1:13-cv-01095, ECF No. 18 (W.D. Ark. 2014). The Court did not address Plaintiff’s PRW and

whether Plaintiff retained the capacity to perform her PRW or not. Thus, there has been no

demonstration that the ALJ was barred from re-evaluating this issue and finding Plaintiff indeed did

retain the capacity to perform her PRW. Accordingly, the Court finds no basis for reversal on this

issue.

B. RFC Assessment

Plaintiff claims the ALJ erred in assessing her RFC. ECF No. 18 at 9-13. Notably, Plaintiff

argues the ALJ improperly “discarded opinions of Drs. Crowe, Lauster, and Davis, who imposed

significant limitations of Plaintiff’s physical activities.” Id. Plaintiff argues the ALJ disregarded

their findings because Plaintiff “engaged in slow dancing activities.” Id. Plaintiff argues that her

1 The instructions on remand were included in a report and recommendation and were subsequently

adopted by the district court.

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ability to perform the full range of light work on a day in, day out basis requires more than just the

ability to engage in some dancing and other limited activities. Id.

Upon review of the ALJ’s evaluation of Plaintiff’s RFC, the Court finds that determination

is supported by substantial evidence in the record. Indeed, as the ALJ noted the “record is replete

with references to activities far beyond those acknowledged at the hearing.” (Tr. 924). These

include seeking treatment “for neck pain after jumping off a diving board,” reporting aggravated

back pain after a fight at the trailer park and thereafter being arrested, complaining of right lower leg

pain after “walking at the fair,” and going dancing every weekend. (Tr. 924-925). Thus, the Court

cannot find the ALJ based her RFC determination simply upon the fact that Plaintiff was able to

engage in some limited dancing.

C. Credibility Determination

Plaintiff claims the ALJ erred in assessing her credibility. ECF No. 18 at 13. In making this

argument, Plaintiff claims her testimony “was not given sufficient weight” and was “treated as not

being credible without any explanation.” Id. Upon review, however, for the same reasons stated

above, the Court disagrees with this argument. The ALJ in the present action provided several

detailed, valid, and credible reasons for discounting Plaintiff’s subjective complaints. Thus, the

Court finds no basis for reversal on this issue. See Guilliams v. Barnhart, 393 F.3d 798, 801 (8th

Cir. 2005) (recognizing that the court will “defer to the ALJ’s determinations regarding the

credibility of testimony, as long as they are supported by good reasons and substantial evidence”).

D. Ability to Work

Plaintiff claims the ALJ erred by “summarily” concluding she can return to her PRW as an

office manager. ECF No. 18 at 14-15. Upon review, the Court also finds this argument is without

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merit. Indeed, even though the ALJ did not go into great detail at this third administrative hearing

regarding her PRW, the ALJ did address this issue at the first administrative hearing. (Tr. 75-76).

Based upon the Court’s review of this decision and this administrative hearing, the Court finds no

basis for Plaintiff’s argument that the ALJ reached an unsupported conclusion on this issue.

4. Conclusion:

Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits

to Plaintiff, is supported by substantial evidence and recommends that it be AFFIRMED.

The Parties have fourteen (14) days from receipt of this Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The Parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).

ENTERED this 14th day of December 2017.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE

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