United States District Court, E.D. Missouri, Northern Division
KARA R. DAMES, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security Defendant.
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE.
an action under Title 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner denying the
application of Kara R. Dames (“Plaintiff”) for
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles
II and XVI of the Social Security Act, 42 U.S.C. §§
401, et seq. and 42 U.S.C. §§ 1381, et
seq. Plaintiff has filed a brief in support of the
Complaint (Doc. 17) and Defendant has filed a brief in
support of the Answer (Doc. 24). The parties have consented
to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)
October 3, 2013, Plaintiff filed an application for SSI and
DIB under Titles II and XVI of the Social Security Act (Tr.
182-94). On January, 282014, Defendant issued a Notice of
Disapproved Claim (Tr. 85-95). Plaintiff filed a Request for
Hearing before an Administrative Law Judge on February 25,
2014 (Tr. 103-04). After a hearing, by decision dated July
24, 2015, the ALJ found Plaintiff not disabled (Tr. 8-27). In
a decision dated September 17, 2016 the Appeals Council
denied Plaintiff's request for review (Tr. 1-6). As such,
the ALJ's decision stands as the final decision of the
DECISION OF THE ALJ
found Plaintiff has the severe impairments of obesity,
cognitive disorder, status-post brain cancer with treatment
by chemotherapy and radiation and with residuals such as
partial hearing loss, deep vein thrombosis of the right lower
extremity and diabetes mellitus with early peripheral
neuropathy (Tr. 13). The ALJ found that Plaintiff does not
have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr.
determined Plaintiff has the Residual Functional Capacity
(“RFC”) to perform sedentary work,  except she can
never climb ladders, ropes, or scaffolds; she can
occasionally climb ramps and stairs; she can occasionally
stoop, kneel, crouch, and crawl (Tr. 16). She must avoid
working at unprotected heights and around dangerous machinery
(Id.). She must work in an environment with moderate
or less noise level, and is limited to simple routine tasks
and simple work-related decisions (Id.). She can
have only occasional interaction with the public and
co-workers (Id.). The ALJ determined Plaintiff is
unable to perform any past relevant work (Tr. 20). The ALJ
found that there are jobs that exist in significant numbers
in the national economy that Plaintiff can perform including
circuit board screener, assembler, and semi-conductor bonder
(Tr. 21). Thus, the ALJ concluded that a finding of
“not disabled” was appropriate (Tr. 22).
Plaintiff appeals, arguing a lack of substantial evidence to
support the Commissioner's decision (Doc. 17).
the Social Security Act, the Commissioner has established a
five-step process for determining whether a person is
disabled. 20 C.F.R. §§ 416.920, 404.1529. “If
a claimant fails to meet the criteria at any step in the
evaluation of disability, the process ends and the claimant
is determined to be not disabled.” Goff v.
Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th
Cir. 2004)). In this sequential analysis, the claimant first
cannot be engaged in “substantial gainful
activity” to qualify for disability benefits. 20 C.F.R.
§§ 416.920(b), 404.1520(b). Second, the claimant
must have a severe impairment. 20 C.F.R. §§
416.920(c), 404.1520(c). The Social Security Act defines
“severe impairment” as “any impairment or
combination of impairments which significantly limits
[claimant's] physical or mental ability to do basic work
activities. . . .” Id. “‘The
sequential evaluation process may be terminated at step two
only when the claimant's impairment or combination of
impairments would have no more than a minimal impact on [his
or] her ability to work.'” Page v. Astrue,
484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v.
Massanari, 250 F.3d 603, 605 (8th Cir. 2001), citing
Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir.
the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the
Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d).
If the claimant has one of, or the medical equivalent of,
these impairments, then the claimant is per se disabled
without consideration of the claimant's age, education,
or work history. Id.
the impairment must prevent the claimant from doing past
relevant work. 20 C.F.R. §§ 416.920(f),
404.1520(f). The burden rests with the claimant at this
fourth step to establish his or her RFC. Steed v.
Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008)
(“Through step four of this analysis, the claimant has
the burden of showing that she is disabled.”). The ALJ
will review a claimant's RFC and the physical and mental
demands of the work the claimant has done in the past. 20
C.F.R. § 404.1520(f).
the severe impairment must prevent the claimant from doing
any other work. 20 C.F.R. §§ 416.920(g),
404.1520(g). At this fifth step of the sequential analysis,
the Commissioner has the burden of production to show
evidence of other jobs in the national economy that can be
performed by a person with the claimant's RFC.
Steed, 524 F.3d at 874 n.3. If the claimant meets
these standards, the ALJ will find the claimant to be
disabled. “The ultimate burden of persuasion to prove
disability, however, remains with the claimant.”
Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir.
2000). See also Harris v. Barnhart, 356 F.3d 926,
931 n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155
(Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d 801,
806 (8th Cir. 2004) (“The burden of persuasion to prove
disability and to demonstrate RFC remains on the claimant,
even when the burden of production shifts to the Commissioner
at step five.”). Even if a court finds that there is a
preponderance of the evidence against the ALJ's decision,
the decision must be affirmed if it is supported by
substantial evidence. Clark v. Heckler, 733 F.2d 65,
68 (8th Cir. 1984). “Substantial evidence is less than
a preponderance but is enough that a reasonable mind would
find it adequate to support the Commissioner's
conclusion.” Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002). See also Cox v. Astrue,
495 F.3d 614, 617 (8th Cir. 2007).
not the job of the district court to re-weigh the evidence or
review the factual record de novo. Cox, 495 F.3d at
617. Instead, the district court must simply determine
whether the quantity and quality of evidence is enough so
that a reasonable mind might find it adequate to support the
ALJ's conclusion. Davis v. Apfel, 239 F.3d 962,
966 (8th Cir. 2001) (citing McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a
function of the ALJ, who is the fact-finder. Masterson v.
Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). Thus, an
administrative decision which is supported by substantial
evidence is not subject to reversal merely because
substantial evidence may also support an opposite conclusion
or because the reviewing court would have decided
differently. Krogmeier, 294 F.3d at 1022.
determine whether the Commissioner's final decision is
supported by substantial evidence, the court is required to
review the administrative record as a whole and to consider:
(1) 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 proper
hypothetical questions which fairly set forth the
claimant's physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec'y of Dep't of Health, Educ. &
Welfare, 623 F.2d 523, 527 (8th Cir. 1980).