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Kasumovic v. Colvin

United States District Court, E.D. Missouri, Eastern Division

February 13, 2015

DZEMILA KASUMOVIC, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION, MEMORANDUM AND ORDER

HENRY EDWARD AUTREY, District Judge.

This matter is before the Court on Plaintiff's request for judicial review under 28 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff's applications for disability insurance benefits and supplemental security income (SSI) under Titles II and XVI of the Social Security Act (Act), 42 U.S.C. §§ 401-434, 1381-1385. For the reasons set forth below, the Court will affirm the Commissioner's denial of Plaintiff's applications.

Facts and Background

Plaintiff was 50years old at the time of the hearing. She has a limited education and has had no additional education since she has been in the United States. Plaintiff had past work experience as a shipping and receiving clerk and store laborer. Plaintiff lives with her son, daughter-in-law, and granddaughter.

Plaintiff testified that she has depression and she has crying spells from time to time. She further testified that her trouble sleeping at night affects her during the daytime as she has to sleep during the day. Her doctors advised her to not take her medicine as needed but to take it daily. The medicine she does take makes her feel exhausted and tired.bt that if she stopped talking to it, she would cry too much and think of killing herself.

She drives, but is only able to drive five miles. She drives one or two times per week. She testified she sometimes drives her granddaughter to school, and will drive to visit her brother and to doctor's appointments. On the days when she does not drive her granddaughter to school, her daughter-in-law does the driving. The doctor's office is three miles from her house.

She testified she can lift twenty pounds, can stand for ten minutes at a time before she must sit due to back pain, can sit for thirty minutes without changing positions or standing up, and can walk for 20-30 minutes at a time.

Plaintiff stated that she has type II diabetes which causes tingling in her hands and arms. She stated she has problems gripping objects and recently dropped coffee all over herself as she was carrying it to the table. Plaintiff testified that her left hand is better than her right and she is right hand dominant.

The ALJ found Plaintiff had the severe impairments that included diabetes, obesity, post-traumatic stress disorder (PTSD), anxiety, and depression. The ALJ found she did not have an impairment or combination of impairments listed in or medically equal to one contained in 20 C.F.R. part 404, subpart P, appendix 1.

Avocational expert testified in order to assist the ALJ in reaching a decision. The ALJ concluded, based upon inquiry of the ALJ that Plaintiff retained the RFC to perform medium work but needed to avoid exposure to heights and avoid climbing ladders, ropes, and scaffolds. She was also limited to no more than frequent fingering and fine manipulation and could perform work involving understanding, remembering, and carrying out simple instructions and non-detailed tasks. The ALJ found that Plaintiff's impairments would not preclude her from performing her past work as a stores laborer, as well as other work that exists in significant numbers in the national economy, including work as an industrial cleaner, dining room attendant, and kitchen helper. The ALJ therefore concluded Plaintiff was not disabled.

The Appeals Council denied her request for review on January 8, 2014.The decision of the ALJ now stands as the final decision for review by this court.

Statement of Issues

The issues in a Social Security case are whether the final decision of the Commissioner is consistent with the Social Security Act, regulations, and applicable case law, and whether the findings of fact by the ALJ are supported by substantial evidence on the record as a whole. Here the Plaintiff asserts the ALJ did not properly evaluate Plaintiff's severe impairments, the ALJ did not properly evaluate the medical opinions, the ALJ did not properly assess Plaintiff's RFC or correctly use Vocational Expert testimony to find Plaintiff not disabled.

Standard For Determining Disability

The Social Security Act defines as disabled a person who 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir.2010). The impairment must be "of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 1382c(a)(3)(B).

A five-step regulatory framework is used to determine whether an individual claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.2011) (discussing the five-step process). At Step One, the ALJ determines whether the claimant is currently engaging in "substantial gainful activity"; if so, then he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I); McCoy, 648 F.3d at 611. At Step Two, the ALJ determines whether the claimant has a severe impairment, which is "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities"; if the claimant does not have a severe impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a) (4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c); McCoy, 648 F.3d at 611. At Step Three, the ALJ evaluates whether the claimant's impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "listings"). 20 ...


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