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Case: 2:13-cv-00031-RWS Doc. #: 29 Filed: 02/13/14 Page: 1 of 16 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI NORTHERN DIVISION SCOTT L. NEWBERN, ) ) Plaintiff, ) ) v. ) Case No. 2:13-CV-31-RWS-NAB ) CAROLYN W. COLVIN, ) Acting Commissioner of Social Security, ) ) Defendant. ) REPORT AND RECOMMENDATION This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of Social Security’s final decision denying Scott L. Newbern’s (“Newbern”) application for benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. Newbern alleged disability due to torn ligaments in the right knee, no bicep muscle in the right arm, steel plate in the neck, diabetes, and Hepatitis C. (Tr. 179.) This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) for a report and recommendation. [Doc. 4.] I. Background On August 12, 2010, Newbern applied for disability insurance benefits. (Tr. 131-136.) The Social Security Administration (“SSA”) denied Newbern’s claim and he filed a timely request for a hearing before an administrative law judge (“ALJ”). (Tr. 65-69, 72-74.) The SSA granted Newbern’s request for review. (Tr. 76-77.) An administrative hearing was held on February 1, 2012. (Tr. 27-54.) The ALJ issued a written opinion upholding the denial of benefits. (Tr. 9-22.) Newbern requested review of the ALJ’s decision from the Appeals Council. (Tr. 5.) On January 28, 2013, the Appeals Council denied Newbern’s request for Case: 2:13-cv-00031-RWS Doc. #: 29 Filed: 02/13/14 Page: 2 of 16 PageID #: <pageID> review. (Tr. 1-3.) The decision of the ALJ thus stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000). Newbern filed this appeal on March 26, 2013. [Doc. 1.] The Commissioner filed an Answer and the certified Administrative Transcript on May 24, 2013. [Docs. 9, 10.] Newbern filed a Brief in Support of Complaint on October 31, 2013. [Doc. 23.] The Commissioner filed a Brief in Support of the Answer on January 27, 2014. [Doc. 28.] II. Standard of Review The Social Security Act defines disability as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration uses a five-step analysis to determine whether a claimant seeking disability benefits is in fact disabled. 20 C.F.R. § 404.1520(a)(1). First, the claimant must not be engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). Second, the claimant must establish that he or she has an impairment or combination of impairments that significantly limits his or her ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Third, the claimant must establish that his or her impairment meets or equals an impairment listed in the appendix to the applicable regulations. 20 C.F.R. § 404.1520(a)(4)(iii). Fourth, the claimant must establish that the impairment prevents him or her from doing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). At step five, the burden shifts to the Commissioner to establish that the claimant maintains the residual functional capacity to perform a significant number of jobs in the national economy. Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2 Case: 2:13-cv-00031-RWS Doc. #: 29 Filed: 02/13/14 Page: 3 of 16 PageID #: <pageID> 2000). If the claimant satisfies all of the criteria under the five-step evaluation, the ALJ will find the claimant to be disabled. 20 C.F.R. § 404.1520(a)(4)(v). This Court reviews decisions of the ALJ to determine whether the decision is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is less than a preponderance, but enough that a reasonable mind would find adequate support for the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). Therefore, even if this Court finds that there is a preponderance of evidence against the weight of 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). An administrative decision is not subject to reversal simply because some evidence may support the opposite conclusion. Gwathney v. Chater, 1043, 1045 (8th Cir. 1997). To determine whether the ALJ’s final decision is supported by substantial evidence, the Court is required to review the administrative record as a whole to consider: (1) The findings of credibility made by the ALJ; (2) The education, background, work history, and age of the claimant; (3) The medical evidence given by the claimant’s treating physician; (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 physical impairment; (6) The testimony of vocational experts based upon prior hypothetical questions which fairly set forth the claimant’s physical impairment; and 3 Case: 2:13-cv-00031-RWS Doc. #: 29 Filed: 02/13/14 Page: 4 of 16 PageID #: <pageID> (7) The testimony of consulting physicians. Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980). III. ALJ’s Decision First, the ALJ determined that Newbern last met the insured status requirements of the Social Security Act on March 31, 2011 and that he had not engaged in any substantial gainful activity from his amended alleged onset date of March 27, 2009 through his date last insured. (Tr. 11.) Second the ALJ found that Newbern had the severe impairments of disc protrusion at L5-S1; multi-level degenerative changes of the cervical spine; status post anterior cervical discectomy and fusion1 (“ACDF”) at C5-C6 and C6-C7; disc herniation at C7-T severe cervical stenosis at C4-C5; moderate cervical stenosis at C5-C6; anterior cruciate ligament2 (“ACL”) repair of the right knee; diabetes; hepatitis C; and obesity. (Tr. 11.) Third, the ALJ determined that Newbern did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 13.) The ALJ found that Newbern had the residual functional capacity to perform sedentary work, however, he is limited to occasionally stooping, kneeling, crouching, crawling, balancing, and climbing ramps, stairs, ladders, ropes or scaffolds. (Tr. 15.) Fourth, the ALJ found that Newbern could not return to his past relevant work; but jobs existed in significant numbers in the national economy that he could perform. (Tr. 21.) Finally, the ALJ concluded that Newbern was not under a disability from March 27, 2009 through March 31, 2011. (Tr. 21.) 1 Anterior decompression and fusion is the removal of pressure and fixation of the bones between two or more vertebrae. Stedman’s Medical Dictionary 90, 462, 720-21 (27th ed. 2000). 2 Anterior cruciate ligament is “the ligament that extends from the anterior intercondylar area of the tibia to the posterior part of the medial surface of the lateral condyle of the femur.” Stedman’s Medical Dictionary 997 (27th ed. 2000). 4 Case: 2:13-cv-00031-RWS Doc. #: 29 Filed: 02/13/14 Page: 5 of 16 PageID #: <pageID> IV. Administrative Record The following is a summary of relevant evidence before the ALJ. A. Administrative Hearing At the administrative hearing, the ALJ heard testimony from Newbern and he was represented by counsel. Newbern testified that at the time of the hearing he was 44 years old and the primary care giver to his children, ages 4 and 15. (Tr. 33-34.) Newbern drives daily to his kids’ school, the grocery store, and the doctor’s office. (Tr. 35.) Newbern currently works part-time at McDonald’s where he takes out the trash, cleans the tables, and filters the grease. (Tr. 38.) He works there for 12 to 14 hours per week and he is allowed to take breaks, as needed, if he is hurting. (Tr. 39.) Newbern states that it hurts when he stands too long or has to lift even light things. (Tr. 40.) He cannot lift with his knees so lifting places extra pressure on his neck and back. (Tr. 40.) Newbern testified that he is exhausted and hurting at the end of his shift and is unable to obtain a good rest at night. (Tr. 41.) On work days, the symptoms are worse than the days when he is not working. (Tr. 41.) Newbern testified that neck surgery in March 2009 provided only temporary relief. (Tr. 41.) Newbern states that his hands and fingers are numb, he has pain in his neck and feels like someone is standing on his back and pulling his arms backwards. (Tr. 41-42.) Newbern stated that he cannot grip and cannot carry anything unless he can hold it by the bottom. (Tr. 42.) Newbern has no tricep muscles; therefore, he cannot lift any kind of weight over his head, push up over his head or push anything away from him. (Tr. 42.) He cannot hold his arms out in front of him for an extended length of time.