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Eckert v. Berryhill

United States District Court, W.D. Missouri, Central Division

March 27, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          ROBERT E. LARSEN United States Magistrate Judge

         Plaintiff Sheila Eckert seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Title II of the Social Security Act ("the Act"). Plaintiff argues that the ALJ erred in finding that she was not disabled because plaintiff needs to take rest breaks up to four hours during the day due to auras and she has to stay in bed all day two to three days a week on her bad days. I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not disabled. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.

         I. BACKGROUND

         On February 12, 2013, plaintiff applied for disability benefits alleging that she had been disabled since December 1, 2010, later amended to August 31, 2012 (the day after the ALJ's decision in her prior disability case). Plaintiff's disability stems from depression, epilepsy, headaches, irritable bowel syndrome, celiac disease (gluten sensitivity), asthma, and hypothyroidism. Plaintiff's application was denied on March 12, 2013. On June 10, 2014, a hearing was held before an Administrative Law Judge.

         On July 25, 2014, the ALJ found that plaintiff was not under a “disability” as defined in the Act. On October 1, 2015, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the final decision of the Commissioner.


         Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a “final decision” of the Commissioner. The standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner's decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Commissioner's decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). “The Court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450 U.S. 91, 99 (1981)).

         Substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the substantial evidence standard presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. “[A]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision.” Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).


         An individual claiming disability benefits has the burden of proving he is unable to return to past relevant work by reason of a medically-determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel, 118 F.Supp.2d 974 (W.D. Mo. 2000).

         The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. These regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:

1. Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
2. Does the claimant have a severe impairment or a combination of impairments which significantly limits his ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3. Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
4. Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5. Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.

         IV. THE RECORD

         The record consists of the testimony of plaintiff and vocational expert Deborah Determan, in addition to documentary evidence admitted at the hearing.


         The record contains the following administrative reports:

         Earnings Record

          The record establishes that plaintiff earned the following income from 1991 through 2013, shown in both actual and indexed figures:


Actual Earnings

Indexed Earnings


$ 673.57

$ 1, 276.48





7, 691.81

13, 744.23


6, 678.00

11, 620.80


3, 438.49

5, 752.93


7, 820.26

12, 474.01


9, 027.00

13, 605.00


6, 048.00

8, 661.87


3, 774.95

5, 121.05


9, 101.20

11, 699.58


6, 343.39

7, 964.42


5, 026.75

6, 248.65


5, 115.42

6, 207.13


9, 386.72

10, 884.03


9, 899.98

11, 073.96


5, 876.52

6, 284.53


3, 129.12

3, 201.10


5, 737.11

5, 737.11


3, 298.63

3, 298.63


4, 356.81

4, 356.81










(Tr. at 136-137).

         Function Report

         In a Function Report dated March 5, 2013, plaintiff reported that when she feels OK she will cook and load/unload the dishwasher (Tr. at 176). She reported that her “body hurts from fibromyalgia, migraines, meds side effects, pain in head, IBS -constantly using restroom” (Tr. at 176). Plaintiff did not indicate whether her condition impacts her ability to dress, bathe, care for her hair, shave, feed herself, etc. (Tr. at 176). Most of plaintiff's answers on this form were “depends on how I feel” (Tr. at 176- 182). Depending on how she feels, plaintiff will sometimes go to the movies or to Wal-Mart with friends (Tr. at 179).

         B. ...

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