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King v. Berryhill

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

March 14, 2019

NIGEL KING, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner denying the application of Nigel King (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II, 42 U.S.C. §§ 401, et seq. and Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. Plaintiff filed a brief in support of the Complaint (Doc. 14), Defendant has filed a brief in support of the Answer (Doc. 17), and Plaintiff filed a reply brief (Doc. 18). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 7).


         Plaintiff filed her applications for DIB and SSI on March 27, 2014 (Tr. 283-90). Plaintiff was initially denied on May 9, 2014, and she filed a Request for Hearing before an Administrative Law Judge (“ALJ”) (Tr. 211-21). After a hearing, by decision dated May 19, 2016, the ALJ found Plaintiff not disabled (Tr. 189-210). On August 31, 2017, the Appeals Council granted Plaintiff's request for review (Tr. 278-82). On December 4, 2017, the Appeals Council issued an unfavorable decision, finding Plaintiff not disabled (Tr. 1-7). As such, the Appeals Council's decision stands as the final decision of the Commissioner.


         The ALJ determined that Plaintiff has not engaged in substantial gainful activity since January 1, 2014, the alleged onset date (Tr. 194). The ALJ found Plaintiff has the following severe impairments: degenerative disc and joint disease of the lumbar spine; degenerative joint disease and arthritis of the right knee; asthma; retrocele with prolapse; history of seizure disorder with normal electroencephalogram testing; depression; and anxiety (Tr. 195-97). However, the ALJ found that no impairment or combination of impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 197- 99).

         After considering the entire record, the ALJ determined Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work, [1] with the following limitations (Tr. 199). She can lift or carry 10 pounds occasionally and less than 10 pounds frequently and can push or pull only to the weight limits (Id.). She can sit 6 hours total in an 8-hour workday and can stand or walk 2 hours total in an 8-hour workday, each for a combined total of 8 hours in an 8-hour workday (Id.). Plaintiff can occasionally stoop, crouch, and climb ramps or stairs (Id.). She cannot climb ladders, ropes, or scaffolds, and she cannot crawl or kneel (Id.). She can have no concentrated exposure to pulmonary irritants such as smoke, dust, odors, fumes, gases, and poor ventilation (Id.). Plaintiff also can have no exposure to whole body vibration and cannot operate motor vehicles (Id.). She should avoid hazards of dangerous unprotected heights and dangerous unprotected machinery (Id.). Mentally, Plaintiff is able to understand, remember, and carry out simple tasks that are routine (Id.). She is able to use judgment in making commensurate work-related decisions (Id.). She is able to occasionally interact appropriately with the general public superficially and away from crowds, and she also is able to occasionally interact appropriately with co-workers and supervisors (Id.). She is able to respond appropriately to changes in a routine and normal work environment (Id.).

         The ALJ found Plaintiff unable to perform any past relevant work (Tr. 203-04). Nonetheless, the ALJ determined there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including final assembler, table worker, and document preparer (Tr. 204-05). Thus, the ALJ concluded that a finding of “not disabled” was appropriate (Tr. 205). Plaintiff appealed to the Appeals Council (Tr. 273-77).

         Upon review of the ALJ's decision, and relevant to Plaintiff's appeal to this Court, the Appeals Council clarified the weight given to one medical consultant and adopted the ALJ's findings with respect to Plaintiff's severe impairments, residual functional capacity, past relevant work, and ability to perform work existing in significant numbers in the national economy (Tr. 1-7). The Appeals Council adopted the ALJ's findings in their entirety and concluded Plaintiff was not disabled (Tr. 7). Plaintiff appeals, arguing a lack of substantial evidence to support the Commissioner's decision.


         Under 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. 1996)).

         Third, 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.

         Fourth, 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).

         Fifth, 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).

         It is 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.

         To 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 ...

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