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Brun v. Colvin

United States District Court, D. Nebraska

April 2, 2014

KRISTINE M. BRUN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


F.A. GOSSETT, Magistrate Judge.

Plaintiff Kristine M. Brun claims in this Social Security appeal that the Commissioner's decision to deny her Social Security benefits is contrary to law and not supported by substantial evidence. The Commissioner's decision will be affirmed.


In October, 2009, Plaintiff filed an application for disability benefits under Title II of the Social Security Act (the "Act"), alleging that since December 15, 2008, [1] she has been unable to engage in any type of substantial and gainful work activity due to fibromyalgia, degenerative disc disease, depression, allergies, acid reflux and sleep apnea. (Tr. 155.) Plaintiff's application was denied initially (Tr. 74, 78-81) and on reconsideration. (Tr. 76, 86-93.) Subsequently, she appealed the denial to an administrative law judge ("ALJ").

Following an administrative hearing, the ALJ issued an unfavorable decision on October 20, 2011, concluding that Plaintiff is not "disabled" within the meaning of the Act. (Tr. 12-24.) In her decision, the ALJ evaluated Plaintiff's disability claim by following the five-step sequential analysis prescribed by the Social Security Regulations.[2] See 20 C.F.R. ยงยง 404.1520 and 416.920. In doing so, the ALJ found that Plaintiff had the severe impairments of fibromyalgia, bilateral degenerative joint disease of the knees, degenerative disc disease, allergies, obstructive sleep apnea, asthma, obesity, major depressive disorder and alcohol dependence. (Tr. 14.) The ALJ then formulated Plaintiff's residual functional capacity ("RFC")[3] as follows:

[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) in that the claimant retains the ability to stand or walk for 2 hours in an 8-hour day, sit with normal breaks for 6 hours, and perform occasional postural activities such as climb, balance and stoop. The claimant should seldom kneel, crawl or be on her knees. The claimant should avoid concentrated exposure to fumes and to hazards and not work on ladders, ropes and scaffolds. The claimant retains the ability to perform unskilled work that is routine, repetitive and does not require extended concentration, with a specific vocational preparation skill level of 1 or 2. Finally, the claimant should avoid intense or constant social interactions but could handle occasional or brief, superficial social interaction.

(Tr. 17.) The ALJ determined that, given Plaintiff's RFC, she was unable to perform her past relevant work as a cashier-checker, bagger, cashier II, deli worker, stocking and assembler of small products. (Tr. 23.) However, the ALJ found that there was other work Plaintiff could perform, such as inspector packager, final assembler, and inspector tester. (Tr. 23-24). Therefore, the ALJ determined that Plaintiff was not entitled to benefits. (Tr. 24.)

Plaintiff requested review of the ALJ's decision by the Appeals Council of the Social Security Administration. On February 4, 2013, after considering additional evidence submitted by Plaintiff, the Appeals Council denied Plaintiff's request for review. (Tr. 1-4.) Thus, the ALJ's decision stands as the final decision of the Commissioner of Social Security.


A denial of benefits by the Commissioner is reviewed to determine whether the denial is supported by substantial evidence on the record as a whole. Hogan v. Apfel , 239 F.3d 958, 960 (8th Cir. 2001) (quotation and citation omitted). "Substantial evidence" is less than a preponderance, but enough that a reasonable mind would find it adequate to support the Commissioner's conclusion. Id. at 960-61 (quotation and citation omitted). Evidence that both supports and detracts from the Commissioner's decision must be considered, but the decision may not be reversed merely because substantial evidence exists for a contrary outcome. Moad v. Massanari , 260 F.3d 887, 890 (8th Cir. 2001).

Plaintiff makes two arguments on appeal. First, Plaintiff maintains that the ALJ's finding that she did not have any significant limitations in her ability to sit for prolonged periods of time is not supported by the evidence. Second, Plaintiff claims that the ALJ failed to properly evaluate Plaintiff's credibility in reaching her decision. For the reasons explained below, the Court finds each of Plaintiff's arguments unpersuasive.

I. Assessment of Plaintiff's RFC

Plaintiff maintains that the ALJ inaccurately assessed her RFC by failing to include significant limitations on her ability to sit. Plaintiff claims that there is no evidence from a treating provider that indicates that Plaintiff can sit for an extended period of time and that all of the medical evidence indicates that Plaintiff has significant limitations in her ability to sit. Simply put, Plaintiff argues that the ALJ failed to evaluate Plaintiff's claim based on the substantial evidence of record.

The medical evidence shows that in September, 2009, Plaintiff was evaluated by Dr. James Devney for complaints of lower back pain. (Tr. 295.) Upon examination, Dr. Devney observed that Plaintiff appeared comfortable and transitioned without grimace or hesitation. (Tr. 294.) There was no muscle spasm or atrophy, and her lower extremity motor function was normal. ( Id. ) Plaintiff could toe and heel walk bilaterally and perform a deep knee bend without difficulty. ( Id. ) An MRI of Plaintiff's lumbar spine revealed diffuse bulging of the annulus and narrowing ...

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