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McKelvey v. Berryhill

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

March 23, 2017

ROBIN MCKELVEY, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Robin McKelvey's (McKelvey) appeal regarding the denial of her application for disabled widow's benefits and supplemental security income under the Social Security Act. The Court has jurisdiction over the subject matter of this action under 42 U.S.C. § 405(g). McKelvey alleged disability due to major depression. (Tr. 160.) The parties have consented to the exercise of authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc. 6.] Based on the following, the Court will affirm the Commissioner's decision.

         I. Background

         On April 18, 2013, McKelvey applied for widow's insurance benefits and supplemental security income with an alleged onset date of January 3, 2012. (Tr. 128-44.) The Social Security Administration (“SSA”) denied McKelvey's claim and she filed a timely request for a hearing before an administrative law judge (“ALJ”). (Tr. 68-86.) The SSA granted McKelvey's request for review. (Tr. 89-91.) An administrative hearing was held on March 31, 2014. (Tr. 31-55.) McKelvey, who was represented by counsel, and a vocational expert testified at the hearing. On May 12, 2014, the ALJ issued a written opinion upholding the denial of benefits. (Tr. 11-21.) McKelvey requested review of the ALJ's decision from the Appeals Council. (Tr. 7.) On August 28, 2015, the Appeals Council denied McKelvey's request for review. (Tr. 1-4.) The decision of the ALJ thus stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000). McKelvey filed this appeal on October 28, 2015. [Doc. 1.] The Commissioner filed an Answer and the certified Administrative Transcript on January 11, 2016. [Docs. 9, 10.] McKelvey filed a Brief in Support of Complaint on February 10, 2016. [Doc. 11.] The Commissioner filed a Brief in Support of the Answer on May 3, 2016. [Doc. 17.] McKelvey filed a Reply Brief on May 17, 2016. [Doc. 18.]

         II. Standard of Review

         The Social Security Act defines disability as an “inability 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 has lasted or can be expected to last for a continuous period of not less than 12 months[2].” 42 U.S.C. § 416(i)(1)(A).

         The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). This Court reviews decisions of the ALJ to determine whether the decision is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is less than a preponderance, but enough that a reasonable mind would find adequate support for the ALJ's decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The court determines whether evidence is substantial by considering evidence that detracts from the Commissioner's decision as well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006). The Court may not reverse just because substantial evidence exists that would support a contrary outcome or because the Court would have decided the case differently. Id. If, after reviewing the record as a whole, the Court finds it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's finding, the Commissioner's decision must be affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). To determine whether the ALJ's final decision is supported by substantial evidence, the Court is required to review the administrative record as a whole to consider:

(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant's treating physicians;
(4) The subjective complaints of pain and description of the claimant's physical activity and impairment;
(5) The corroboration by third parties of the claimant's physical impairment;
(6) The testimony of vocational experts based upon prior hypothetical questions which fairly set forth the claimant's physical impairment; and
(7) The testimony of consulting physicians.

Brand v. Sec'y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).

         III. Administrative Record

         The following is a summary of relevant evidence before the ALJ.

         A. McKelvey's Hearing Testimony

         McKelvey testified that she was an unmarried widow who lived alone. (Tr. 37.) McKelvey graduated from high school and is able to read and write. (Tr. 37.) She last worked fifteen years before the hearing. (Tr. 37.)

         She testified that a nurse practitioner Akai[3] has been her main treating provider for about thirteen years. (Tr. 40.) McKelvey testified that she was unable to work full time, because she has lower back problems, experienced trouble sleeping at night, had trouble standing and sitting, her knees swelled, she couldn't bend over, and she needed a heating pad. (Tr. 41-42.) McKelvey's knees swell “all the time” and she has to elevate them every two or three hours, if she is up on them, for 30 to 45 minutes at a time. (Tr. 42.) She testified that her medication causes dizziness and drowsiness. (Tr. 42.) She also experiences slowing of her thinking, shaking, and her stomach burning from the effects of her medication. (Tr. 42.)

         McKelvey cared for her husband before he died, but she only cooked, cleaned and gave him his medicine. (Tr. 43.) She did not lift and carry him. (Tr. 43.) McKelvey stated she could only lift five pounds at one time and sit and stand for fifteen minutes at a time without having to adjust herself. (Tr. 43-44.) She lies down several times a day between 45 minutes to an hour. (Tr. 44.) She ...


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