United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE.
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.
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.]
Standard of Review
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.” 42 U.S.C. § 416(i)(1)(A).
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
(3) The medical evidence given by the claimant's treating
(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
(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).
following is a summary of relevant evidence before the ALJ.
McKelvey's Hearing Testimony
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.)
testified that a nurse practitioner Akai 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.)
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 ...