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McCall v. Berryhill

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

January 13, 2018

SHANNON MCCALL O/B/O TAMARA MCCALL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          WILLIE J. EPPS, JR., United States Magistrate Judge

         Plaintiff Tamara McCall seeks judicial review[1] of a final administrative decision of the Commissioner of Social Security (Commissioner) denying her disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. Ms. McCall contends that the administrative record (AR) does not contain substantial evidence to support the Commissioner's decision that she was not disabled during the relevant period. For the reasons that follow, the Commissioner's decision will be reversed and benefits will be awarded.

         I. Background

         Ms. McCall was born on May 8, 1970. She had previously worked as a phlebotomist, lab technician, and pharmacy technician before moving into the role of stay-at-home mother. AR 877-888. Ms. McCall protectively filed her application for DIB on March 19, 2007. AR 73-82. Her claim was initially denied on July 23, 2007, and she requested a hearing before an Administrative Law Judge (ALJ) on August 30, 2007. AR 69. Ms. McCall appeared and testified at a hearing before the ALJ on October 22, 2008. AR 11. On March 13, 2009, the ALJ issued a decision that Ms. McCall was not under a “disability” as defined in the Social Security Act. AR 11-18. On September 24, 2009, the Appeals Council of the Social Security Administration denied Ms. McCall's request for review. AR 1-3. This Court granted Ms. McCall's motion to remand for further proceedings on September 29, 2010. AR 418-419. On November 17, 2011, following remand and two additional hearings, an ALJ again found that Ms. McCall was not under a disability for the relevant period. AR 400-408. The Appeals Council denied Ms. McCall's request for review on August 30, 2012. AR 394-396. This Court again remanded for further proceedings by the ALJ on March 30, 2014. AR 921-924. On December 28, 2015, following another hearing, an ALJ again found that Ms. McCall was not under a disability during the relevant period. AR 877-888. The Appeals Council denied Ms. McCall's request for review on November 18, 2016. AR 856-859. Thus Ms. McCall has exhausted all of her administrative remedies, and the ALJ's decision stands as the final decision of the Commissioner.

         On January 11, 2017, Ms. McCall filed a complaint in this Court seeking review of the Commissioner's decision. (Doc. 1). The case was originally assigned to United States Magistrate Judge Matt J. Whitworth. The case was reassigned to the undersigned on August 31, 2017. (Doc. 22). The parties, shortly thereafter and within 10 days, consented to the exercise of jurisdiction by the undersigned. (Doc. 33). The parties have fully briefed the issues and an oral argument was held on January 9, 2018.

         II. Disability Determination and the Burden of Proof

         Under the authority of the Social Security Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled. 20 C.F.R. §§ 404.1520(a) and 416.920(a); See Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). The steps are followed in order. If it is determined that the claimant is or is not disabled at a particular step of the evaluation process, the evaluation then will not go on to the next step.

         At step one, the Commissioner must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). Substantial gainful activity (SGA) is defined as work activity that is both substantial and gainful. “Substantial work activity” is work activity that involves doing significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. § 404.1572(b). If the claimant is engaged in SGA, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If the claimant is not engaging in SGA, the analysis proceeds to the second step.

         At step two, the Commissioner must determine whether the claimant has a medically determinable severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities. Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). An impairment or combination of impairments is not severe when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work. Kirby, 500 F.3d. at 707; 20 C.F.R. §§ 404.1521 and 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, the claimant is not disabled. If the claimant has a severe impairment or combination of impairments, the analysis proceeds to the third step.

         At step three, the Commissioner must determine whether the claimant's impairment or combination of impairments is of a severity to meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. If the claimant's impairment or combination of impairments is of a severity to meet or medically equal the criteria of a listing and meets the duration requirement, the claimant is disabled. If it does not, the analysis proceeds to the next step.

         At step four, the Commissioner will assess the claimant's residual functional capacity (RFC) to determine the claimant's ability to do physical and mental work activities on a sustained basis despite limitations from claimant's impairments. 20 C.F.R. §§ 404.1520(a(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). The claimant is responsible for providing evidence to the Commissioner, but the Commissioner is responsible for developing the claimant's complete medical history, arranging for consultative examination, and assisting claimant with gathering other medical evidence. 20 C.F.R. §§ 404.1545(a)(3) and 416.945(a)(3). If a claimant retains the RFC to perform past relevant work, then the claimant is not disabled. If the claimant is unable to do any past relevant work or does not have any past relevant work, the analysis proceeds to the fifth and last step.

         At step five, if the claimant's RFC will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to determine whether the claimant is able to do any other work considering claimant's RFC, age, education, and work experience. If the claimant is able to do other work, the claimant is not disabled. If the claimant is not able to do other work and meets the duration requirement, the claimant is disabled. Although the claimant generally continues to have the burden of proving disability at this step, a limited burden of going forward with the evidence shifts to the Commissioner. In order to support a finding that a claimant is not disabled at this step, the Commissioner is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do given the RFC, age, education, and work experience. 20 C.F.R. §§ 404.1512(g), 404.1560(c), 416.912(g) and 416.960(c). (Doc. 6).

         III. The ...


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