Lodice v. Social Security Administration

Filing 17

MEMORANDUM OPINION AND ORDER affirming the final determination of the Commissioner, and dismissing, with prejudice, 1 Ms. Lodice's complaint. Signed by Magistrate Judge Beth Deere on 3/12/2013. (kdr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
CONNIE JEAN LODICE
v.

PLAINTIFF
NO. 2:11CV00181-BD

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration1

DEFENDANT

MEMORANDUM OPINIONAND ORDER
Plaintiff Connie Jean Lodice has appealed the final decision of the Commissioner
of the Social Security Administration to deny her claim for Widow’s Insurance benefits,
based on disability. Both parties have submitted appeal briefs and the case is ready for
decision.2
The Court’s function on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole and free of legal
error. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185,
187 (8th Cir. 1997); see also 42 U.S.C. §§ 405(g). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257
(8th Cir. 1996). In assessing the substantiality of the evidence, the Court has considered
evidence that detracts from the Commissioner’s decision as well as evidence that supports
it.

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of the
Social Security Administration. She has been substituted for named Defendant Michael
J. Astrue under Fed.R.Civ.P. 25.
1

2

The parties have consented to the jurisdiction of the Magistrate Judge. (Docket #16)

Ms. Lodice alleged that she was limited in her ability to work by lupus, arthritis,
bilateral carpal tunnel syndrome, diabetes, and pain in her neck. (Tr. 193) After
conducting an administrative hearing, the Administrative Law Judge3 (ALJ) concluded
that Ms. Lodice had not been under a disability within the meaning of the Social Security
Act at any time through January 19, 2010, the date of his decision. (Tr. 32) On August
11, 2011, the Appeals Council received and considered additional evidence and then
denied the request for a review of the ALJ’s decision, making the ALJ’s decision the final
decision of the Commissioner.4 (Tr. 1-3) She then filed her complaint initiating this
appeal. (Docket #1)
Ms. Lodice was 52 years old at the time of the hearing. (Tr. 22, 36, 136, 145) She
is a high school graduate in regular classes with one year of college. (Tr. 198) She has
no past relevant work. (Tr. 31)
The ALJ found that Ms. Lodice met the non-disability requirements for disabled
widow’s benefits and that she had not engaged in substantial gainful activity since
January 1, 1987, her alleged onset date. (Tr. 24) He found that Ms. Lodice had “severe”
impairments: discoid lupus,5 obesity, hypertension, diabetes mellitus, degenerative joint
disease of the spine and mild carpal tunnel syndrome. Id. He found she did not have an
impairment or combination of impairments that met or equaled a Listing. (Tr. 29) He
judged that Ms. Lodice’s allegations regarding the intensity, persistence and limiting
effects of her symptoms were not totally credible. (Tr. 31)

3

The Hon. W. Thomas Bundy.

4

The Appeals Council set aside two earlier decisions. (Tr. 1, 6)

Discoid lupus is a set of skin changes that can occur as a part of lupus, with or
without systemic involvement. The Merck Manual 309 (19th ed. 2011).
5

2

Based on these findings, the ALJ concluded that Ms. Lodice retained the residual
functional capacity for light work. (Tr. 29-30) He determined that she had no past
relevant work. (Tr. 31)
The ALJ applied Ms. Lodice’s vocational profile and the residual functional
capacity which he had found, and established that Rules 202.20 and 202.13, Table No. 2,
Appendix 2, Subpart P, Regulations No. 4 directed a finding of not disabled. (Tr. 32)
Thus, the ALJ concluded that Ms. Lodice was not disabled. Id.
Plaintiff argues the Appeals Council failed to properly consider new evidence that
she had a mental impairment. (Plaintiff’s Brief 10-13) She does not explain in what
manner the Appeals Council failed to properly consider the new evidence, other than to
argue it is, in part, contrary to the ALJ’s decision.
When new and material evidence is submitted to the Appeals Council,
[t]he Appeals Council shall evaluate the entire record including the new and
material evidence submitted if it relates to the period on or before the date
of the administrative law judge hearing decision. It will then review the
case if it finds that the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently of record.
20 C.F.R. § 404.970(b). The newly submitted evidence is to become part of
what we will loosely describe here as the “administrative record,” even
though the evidence was not originally included in the ALJ’s record.
Browning v. Sullivan, 958 F.2d 817, 823 n. 4 (8th Cir. 1992). If the Appeals
Council does not consider the new evidence, a reviewing court may remand
the case to the Appeals Council if the evidence is new and material. See
Williams v. Sullivan, 905 F.2d 214, 217 (8th Cir. 1990). If, as here, the
Appeals Council considers the new evidence but declines to review the
case, we review the ALJ’s decision and determine whether there is
substantial evidence in the administrative record, which now includes the
new evidence, to support the ALJ’s decision. Browning, 958 F.2d at 823.
Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992)(footnote omitted).

3

It is clear that the Appeals Council considered the evidence Ms. Lodice submitted.6
(Tr. 1, 7)
Once it is clear that the Appeals Council has considered newly submitted
evidence, we do not evaluate the Appeals Council’s decision to deny
review. Instead, our role is limited to deciding whether the administrative
law judge’s determination is supported by substantial evidence on the
record as a whole, including the new evidence submitted after the
determination was made. See, e.g., Nelson, 966 F.2d at 366, and Browning
v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992)
Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994).
Ms. Lodice alleged she was limited in her ability to work by lupus, arthritis,
bilateral carpal tunnel syndrome, diabetes and neck pain. (Tr. 193) There is no mention
in her application of mental impairment. Id. Neither was there testimony of any mental
impairment. (Tr. 37-48)
Ms. Lodice’s present application makes no mention of disabling mental
impairment. Therefore, the evidence concerning this problem, which might support a
new application, has no bearing on the conditions that she has alleged as disabling.
Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001) (fact claimant did not allege
depression in her application was significant, even if evidence of depression was later
developed). The ALJ was under no obligation to investigate a claim that was not
presented at the time of application or offered at the hearing as a basis for disability.
Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008).
Ms. Lodice submitted two separate batches of evidence to the Appeals Council.
In February, 2011, she submitted medical records from Ralph Goodman, M.D. (Tr. 14,
441-66) In March, 2011, she submitted records from Counseling Services of Eastern
Arkansas, dated January 23, 2008 through December 20, 2010. (Tr. 9, 467-548) Some
of those records are from after the date of the ALJ’s opinion, and thus not material to
the time in question. (Tr. 467-91, 553-54, 569-79) Also in March, 2011, she submitted
records from Sandy Winston, M.D., dated July 31, 1997, through December 23, 2010.
(Tr. 9, 549-701) Some of those records were dated after the ALJ’s decision. (TR. 553-54,
569-79) Some are duplicates of records submitted to the ALJ. (Tr. 229-38, 607, 16) Some
deal with medical issues unrelated to the case, such as mammograms. (Tr. 560, 564-66)
6

4

The ALJ even asked Ms. Lodice’s attorney7 whether there was other relevant
evidence:
ALJ: So as best you can tell, we now have all the medical available at this
point that would pertain to the period that is the focus of attention?
ATTY: Yes, sir.
(Tr. 42) Plaintiff’s argument lacks merit.
Next, Ms. Lodice argues it was error to rely on the Medical-Vocational Guidelines
to find her not disabled. (Plaintiff’s Brief 13-14) She points to King v. Astrue, 564 F.3d
978 (8th Cir. 2009), in support of her argument that the ALJ’s reliance on the Guidelines
was inappropriate because of her mental impairment. Here, the record supported the
finding that Ms. Lodice had no nonexertional impairment that significantly affected her
residual functional capacity to perform a full range of light work activities. During the
relevant time period, she was not seen frequently; she was prescribed medications, which
helped; the medications had no side effects. She was depressed in part because of the
death of her mother and her husband.8
Ms. Lodice next contends that the ALJ failed to adequately discuss her residual
functional capacity as contemplated by Social Security Ruling 96-8p. (Plaintiff’s Brief
14-15) The ALJ must determine the claimant’s residual functional capacity based on all
relevant evidence, including medical records, observations of treating physicians and
others, and claimant’s own descriptions of her limitations. Tellez v. Barnhart, 403 F.3d
953, 957 (8th Cir. 2005); Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003).

7

Ms. Lodice was represented by different counsel at the hearing. (Tr. 22)

One’s circumstances in life do not rise to the level of disability contemplated by
the Social Security Act. See Dunahoo v. Apfel, 241 F.3d at 1037 (depression was
situational).
8

5

The ALJ’s residual functional capacity determination clearly included physical
functioning, as called for by the Ruling and 20 C.F.R. §§ 404.1545(b) and 416.945(b)
(2009).9 Consistent with the Ruling, the ALJ narratively discussed medical evidence,
subjective complaints and other evidence; he recognized that Ms. Lodice’s impairments
created limitations and incorporated those limitations into his residual functional capacity.
(Tr. 25-30) A fair reading of the ALJ’s opinion reveals that he properly determined Ms.
Lodice’s residual functional capacity. Her argument seeks to place the burden of proof
on the Commissioner. It is the claimant’s burden, and not the Social Security
Commissioner’s burden, to prove the claimant's residual functional capacity. Goff v.
Barnhart, 421 F.3d 785, 790 (8th Cir. 2005).
Next, Ms. Lodice contends the ALJ failed in his duty to develop the record.
(Plaintiff’s Brief 15-19) She argues that the ALJ had a duty to re-contact her treating
physicians. Id. 18-19. The ALJ is permitted to issue a decision without obtaining
additional evidence as long as the record is sufficient to make an informed decision.10
See, e.g., Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001). In this case, the record
before the ALJ was sufficient for him to make an informed decision.
Both § 404.1545 and 416.945 also contain a paragraph (c) for mental functioning
and (d) dealing with other abilities affected by impairments, such as vision, hearing, skin
impairments, etc. There were no such impairments presented to the ALJ.
9

The ALJ reviewed Ms. Lodice’s medical history from 1981 to August, 2009.
(Tr. 25-29) He noted the examination of Plaintiff by Mark Harriman, M.D., an orthopaedist.
(Tr. 25) The doctor noted she was in good health with excellent range of motion in the
neck; her strength and reflexes were fine; she had no atrophy. (Tr. 252) The ALJ reviewed
treatment records from Pat Bell, D.O., and William F. Winston, II, D.O., which were
unremarkable. (Tr. 25-26, 228-38, 252-346) He noted the results of a September of
2008, examination by Scott Schlesinger, M.D., neurosurgeon. (Tr. 26) Dr. Schlesinger
noted a normal gait, full muscle strength and generally excellent physical functioning.
(Tr. 437-440) The ALJ noted a July, 2009, examination by Jasen C. Chi, M.D.,
rheumatologist/internist. (Tr. 26-27) Dr. Chi noted normal findings with possibly mild
abnormalities, and observed that Plaintiff’s pain reaction seemed “well out of proportion to
my level of palpation.” (Tr. 424-25)
10

6

One point deserves clarification. Ms. Lodice asserts that Lon Burba, M.D.,
treating neurologist, provided an opinion that she was disabled. (Plaintiff’s Brief 18) Dr.
Burba wrote a letter to Social Security, apparently at the behest of Plaintiff’s attorney.
(Tr. 385) It stated, in pertinent part, “She is unable to perform a job for which she is
trained due to her current combination of medical illnesses.” (Tr. 385) That does not
equate with disability under Social Security.
Plaintiff bears a heavy burden in showing the record has been inadequately
developed; she must show both a failure to develop necessary evidence and unfairness or
prejudice from that failure. Gilmore v. Astrue, 2009 WL 559696, *4 (E.D. Ark); Haley v.
Massanari, F.3d 742, 750 (8th Cir. 2001).
It is not the task of this Court to review the evidence and make an independent
decision. Neither is it to reverse the decision of the ALJ because there is evidence in the
record which contradicts his findings. The test is whether there is substantial evidence on
the record as a whole which supports the decision of the ALJ. Van Vickle v. Astrue, 539
F.3d 825, 828 (8th Cir. 2008).
The Court has reviewed the entire record, including the briefs, the ALJ’s decision,
the transcript of the hearing and the medical and other evidence. There is ample evidence
on the record as a whole that “a reasonable mind might accept as adequate to support
[the] conclusion” of the ALJ in this case. Richardson v. Perales, 402 U.S. at 401. The
Commissioner’s decision is not based on legal error.
The final determination of the Commissioner is AFFIRMED, and Ms. Lodice’s
complaint is hereby dismissed with prejudice, this 12th day of March, 2013.

UNITED STATES MAGISTRATE JUDGE
7