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Tucker v. Berryhill

United States District Court, D. Nebraska

August 27, 2018

RHONDA L. TUCKER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant.

          MEMORANDUM AND ORDER

          Susan M. Bazis United States Magistrate Judge.

         Plaintiff Rhonda Tucker (“Plaintiff”) claims in this Social Security appeal that the Commissioner's decision to deny her benefits under the Social Security Act is contrary to law and not supported by substantial evidence. Having considered all arguments and materials presented, and for the reasons explained below, the Commissioner's decision will be affirmed.

         BACKGROUND

         On September 2, 2013, Plaintiff filed an application for disability benefits, alleging disability beginning on August 6, 2013. (TR. 173.) Plaintiff's application was denied initially and on reconsideration. (TR. 189, 197.) Plaintiff appealed the denial to an administrative law judge (“ALJ”).

         An administrative hearing was held on May 2, 2016. (TR. 109, 173.) Deborah Determan (“Determan”), a vocational expert, testified at the hearing. (TR. 109, 173.) Determan classified Plaintiff's past relevant work as “sales clerk, ” and indicated that Plaintiff had acquired skills from her past relevant work, including the ability to fill out orders and forms, treat customers with tact and courtesy even in difficult situations, and talk easily and persuasively with people. (TR. 355.) The ALJ posed a hypothetical question to Determan that reflected Plaintiff's work experience and medical history. Determan testified that the hypothetical individual could not perform Plaintiff's past relevant work. (TR. 136-38.) However, Determan testified that the hypothetical individual could function as a yard goods salesperson and toys and accessories salesperson. (TR. 140-41.) Determan stated that these occupations each consisted of approximately 95, 000 jobs. (TR. 140-41.)

         The ALJ issued an unfavorable decision on July 6, 2016, concluding that Plaintiff was not disabled within the meaning of the Social Security Act. (TR. 170-181.) In the decision, the ALJ evaluated Plaintiff's claim by following the five-step sequential analysis prescribed by the Social Security Regulations. See 20 C.F.R. §§ 404.1520 and 416.920. The ALJ found Plaintiff had the severe impairment of degenerative disc disease of the cervical spine and formulated Plaintiff's residual functional capacity (“RFC”)[1] as follows:

[T]he claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) except the claimant is able to frequently push, pull, and handle; is not able to crawl or climb ladders; and is able to stoop, kneel, and crouch occasionally. Further, the claimant is able to reach overhead rarely (no more than once per hour); is able to perform work that does not require the worker to keep the neck in a flexed position for more than fifteen minutes at one time; and is able to perform work that does not expose the worker to sustained and concentrated vibration or to hazards such as work at unprotected heights.

(TR. 175-76.)

         The ALJ determined that given her RFC, Plaintiff was unable to perform her past work, which the ALJ described as a Sales Clerk, Dictionary of Occupational Titles (“DOT”) 290.477-014. (TR. 179.) However, the ALJ found that Plaintiff had acquired work skills from past employment that are transferable to other occupations which exist in significant numbers in the national economy. (TR. 180.) In particular, relying on Determan's testimony, the ALJ found that Plaintiff could work as a yard goods salesperson and toys and accessories salesperson. (TR. 180-81.) Therefore, the ALJ determined that Plaintiff was not entitled to benefits.

         Plaintiff requested review of the ALJ's decision by the Appeals Council of the Social Security Administration. (TR. 246.) Plaintiff submitted additional evidence to the Appeals Council, which included a vocational evaluation from Rick Ostrander (“Ostrander”). Ostrander generally opined that Plaintiff did not have skills which would transfer to the occupations of yard goods salesperson or toys and accessories salesperson. (TR. 85.)

         The Appeals Council denied Plaintiff's request for review and stated that the additional evidence from Ostrander did not impact the disability determination. (TR. 1-2.) As to this evidence, the Appeals Council stated that the ALJ decided the case through July 6, 2016, and thus the evidence did not relate to the period at issue. Therefore, according to the Appeals Council, the evidence did “not affect the decision about whether [Plaintiff] [was] disabled beginning on or before July 6, 2016.” (TR. 2.)

         Having been denied review by the Appeal Council, the ALJ's decision stands as the final decision of the Commissioner of Social Security.

         ANALYSIS

         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. SeeHogan v. Apfel,239 F.3d 958, 960 (8th Cir. 2001). “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; Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). 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 supports a contrary outcome. SeeM ...


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