Menke v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER - I find that the Commissioners determination that claimant was not disabled is affirmed. Judgment shall be entered against plaintiff and in favor of the Commissioner. Signed by Magistrate Judge CJ Williams on 6/17/16. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
DUSTIN LEE MENKE,
Plaintiff,

No. C15-3113-CJW

vs.

MEMORANDUM OPINION AND
ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

____________________
Plaintiff, Dustin Lee Menke (claimant), seeks judicial review of a final decision
of the Commissioner of Social Security (the Commissioner) denying his application for
Social Security disability insurance benefits (DIB), under Title II of the Social Security
Act, 42 U.S.C. § 401 et seq. (Act). Claimant contends that the administrative record
(AR) does not contain substantial evidence to support the Commissioner’s decision that
he was not disabled during the relevant period.

For the reasons that follow, the

Commissioner’s decision is affirmed.
I.

BACKGROUND

Claimant was born in 1977, completed high school, and did not attend special
education. He has previously worked as a retail store manager, bartender, waiter, sales
representative, and laborer. AR 108-110.

The Administrative Law Judge (ALJ)

determined that he was not capable of performing this past work (AR 109), but that there
was other work which the claimant could perform, such as light unskilled work as a
labeler or marker, assembler general production, and coin machine collector. AR 109111, 159.

Claimant filed his application for DIB on February 22, 2012, alleging a disability
onset date of July 19, 2011. AR 253-54. He contends that he is disabled due to bipolar
disorder, major depression, status post shoulder surgery, and hip/back pain. AR 86 et
al. Claimant’s claims were denied initially and on reconsideration. He then requested a
hearing before an ALJ. ALJ Thomas M. Donahue conducted a video hearing on October
1, 2013 (the Hearing), and issued a decision denying claimant’s claim on December 19,
2013. AR 98-112.
Claimant sought review by the Appeals Council, which denied review on March
12, 2015 (AR 1), leaving the ALJ’s decision as the final decision of the Commissioner.
On May 5, 2015, claimant filed a complaint (Doc. 4) in this court seeking review of the
Commissioner’s decision. On November 13, 2015, with the consent of the parties (Doc.
16), the Honorable Mark W. Bennett transferred this case to a United States Magistrate
Judge for final disposition and entry of judgment. The parties have now briefed the
issues, and the matter is fully submitted.
II.

DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

A disability is defined as the “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 which has lasted or can be expected to last for a continuous
period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C.
§ 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when
the claimant is “not only unable to do his previous work but cannot, considering his age,
education and work experience, engage in any other kind of substantial gainful work
which exists . . . in significant numbers either in the region where such individual lives
or in several regions of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined
in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500 F.3d 705,
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707 (8th Cir. 2007). First, the Commissioner will consider a claimant’s work activity.
If the claimant is engaged in substantial gainful activity, then the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment is
not severe if it amounts only to a slight abnormality that would not significantly limit the
claimant’s physical or mental ability to do basic work activities.” Kirby, 500 F.3d at
707; see also 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and
aptitudes include: (1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and
speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use
of judgment; (5) responding appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in a routine work setting. Id. §§ 404.1521(b)(1)(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S. Ct. 2287, 2291
(1987). “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 her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.
2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will
consider the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled, regardless of age, education, and work experience. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v.
Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
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Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) to determine the claimant’s “ability to meet
the physical, mental, sensory and other requirements” of the claimant’s past relevant
work.

20

C.F.R.

§§ 404.1520(a)(4)(iv),

404.1545(a)(4),

416.920(a)(4)(iv),

416.945(a)(4). “RFC is a medical question defined wholly in terms of the claimant’s
physical ability to perform exertional tasks or, in other words, what the claimant can still
do despite his or her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642,
646 (8th Cir. 2003) (internal quotation marks omitted); see also 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for providing evidence
the Commissioner will use to make a finding as to the claimant’s RFC, but the
Commissioner is responsible for developing the claimant’s “complete medical history,
including arranging for a consultative examination(s) if necessary, and making every
reasonable effort to help [the claimant] get medical reports from [the claimant’s] own
medical sources.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also
will consider certain non-medical evidence and other evidence listed in the regulations.
Id. If a claimant retains the RFC to perform past relevant work, then the claimant is not
disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC, as determined in Step Four, will not allow the
claimant to perform past relevant work, then the burden shifts to the Commissioner to
show that there is other work that the claimant can do, given the claimant’s RFC as
determined at Step Four, and his or her age, education, and work experience. See Bladow
v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must show not
only that the claimant’s RFC will allow the claimant to make an adjustment to other work,
but also that the other work exists in significant numbers in the national economy.
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other
work that exists in significant numbers in the national economy, then the Commissioner
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will find the claimant is not disabled. If the claimant cannot make an adjustment to other
work, then the Commissioner will find that the claimant is disabled.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

20 C.F.R.

At Step Five, even though the burden of

production shifts to the Commissioner, the burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
III.

ALJ’S FINDINGS

The ALJ made the following findings:
1. The claimant last met the insured status requirements of the Social
Security Act through June 30, 2014.
2. The claimant has not engaged in substantial gainful activity since
July 19, 2011, the alleged onset date (20 C.F.R. § 404.1571 et seq.).
3. The claimant has the following severe impairments: Status Post
Shoulder Surgery, Bipolar Disorder, History of Substance/Alcohol
use/abuse. (20 C.F.R. § 404.15210(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).
5. The claimant has the residual functional capacity to perform light
work as defined in 20 C.F.R. § 404.1567(b), except that the claimant can
stand/walk or sit for two hours at a time (for six hours total in an 8-hour
day) and can walk three blocks. The claimant is limited to a job with a
Specific Vocational Preparation (SVP) of 5, no contact with the general
public, and limited contact with co-workers.
6. The claimant is unable to perform any past relevant work (20
C.F.R. § 404.1565).
7. The claimant was born on November 10, 1977, and was 33 years
old, which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 C.F.R. § 404.1563).
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8. The claimant has at least a high school education and is able to
communicate in English (20 C.F.R. § 404.1564.)
9. Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404,
Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant numbers
in the national economy that the claimant can perform (20 C.F.R. §§
404.1569 and 404.1569(a)).
11. The claimant has not been under a disability within the meaning
of the Social Security Act at any time from July 19, 2011, through the date
of this decision (20 C.F.R. § 404.1520(g)).
AR 98-112.
IV.

THE SUBSTANTIAL EVIDENCE STANDARD

The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive. . . .”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept
as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The Eighth Circuit
explains the standard as “something less than the weight of the evidence and [that] allows
for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of
choice within which the [Commissioner] may decide to grant or deny benefits without
being subject to reversal on appeal.” Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.
1994).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
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evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which supports the Commissioner’s decision and evidence that detracts
from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search
the record for evidence contradicting the [Commissioner’s] decision and give that
evidence appropriate weight when determining whether the overall evidence in support
is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (“[A]n administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion.”).

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V.

DISCUSSION

Claimant argues the ALJ’s decision is flawed for two reasons:
1.

The ALJ’s RFC Assessment Is Not Supported By Substantial
Evidence.

2.

The ALJ Failed to Fully Develop the Record.

The court will address these two arguments separately below.
A. RFC Determination - Applicable Standards
The claimant’s RFC is “what [the claimant] can still do” despite his or her
“physical or mental limitations.”

20 C.F.R. § 404.1545(a)(1).

“The ALJ must

determine a claimant’s RFC based on all of the relevant evidence.” Fredrickson v.
Barnhart, 359 F.3d 972, 976 (8th Cir. 2004). This includes “an individual’s own
description of [her] limitations.” McGeorge v. Barnhart, 321 F.3d 766, 768 (8th Cir.
2003) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). The claimant’s
RFC “is a medical question,” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001), and
must be supported by “some medical evidence.” Dykes v. Apfel, 223 F.3d 865, 867 (8th
Cir. 2000) (per curiam). The medical evidence should address the claimant’s “ability to
function in the workplace.” Lewis, 353 F.3d at 646. At Step Four, the claimant has the
burden to prove his RFC and the ALJ determines the RFC based on all relevant evidence.
See Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004).
The ALJ is not required to mechanically list and reject every possible limitation.
McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011). Furthermore, “[a]n ALJ’s failure
to cite specific evidence does not indicate that such evidence was not considered.”
Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010) (quoting Black v. Apfel, 143 F.3d
383, 386 (8th Cir. 1998)). “[T]he ALJ may reject the conclusions of any medical expert,
whether hired by a claimant or by the government, if inconsistent with the medical record
as a whole.” Bentley v. Shalala, 52 F.3d 784, 787 (8th Cir. 1995). The RFC must only
include those impairments which are substantially supported by the record as a whole.
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Goose v. Apfel, 238 F.3d 981, 985 (8th Cir. 2001); see also Forte v. Barnhart, 377 F.3d
892, 897 (8th Cir. 2004).
1.

Substantial Evidence Supports the ALJ’s Findings

a. The ALJ Properly Considered Plaintiff’s Mental Limitations
The ALJ found that plaintiff retained the ability to perform jobs with an SVP of 5
involving no contact with the general public and limited contact with co-workers. AR
104.

Plaintiff contends the ALJ improperly weighed opinions from his therapists, Lisa

Bailey and Sarah Morrison; did not properly consider his GAF scores; and did not discuss
records from Rogerio Ramos, M.D. The record shows that the ALJ properly examined
and discussed the medical evidence, including the opinions from Ms. Bailey and Ms.
Morrison and the GAF scores.
Plaintiff contends he has received mental health treatment for many years, dating
back to childhood. AR 402, 407. He points out his diagnosis of bipolar disorder and his
consistent GAF scores of 50. Plaintiff fails to address that he has been able to work in
the past. AR 280. Plaintiff also fails to address that he reported his inability to keep work
started after he pled guilty to a charge of indecent exposure, which made him a registered
sex offender. AR 419. A claimant is not disabled if his residual functional capacity
permits him to perform work, but he remains unemployed because of his inability to get
work or the hiring practices of employers. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R.
§ 404.1566(c).
Some evidence does show that plaintiff had limitations in social functioning. The
ALJ accommodated those limitations by restricting plaintiff to work involving no contact
with the general public and limited contact with co-workers. AR 104. The ALJ adopted
opinions from state agency psychological consultants Aaron Quinn, Ph.D., and Beverly
Westra, Ph.D. AR 108-109, 176-178, 189-191. The ALJ may consider state agency
physicians’ opinions and may rely upon them in making his findings.
9

See 20 C.F.R.

§ 404.1527(e)(2)(i); see also Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007) (holding
that it is well settled that an ALJ may consider the opinion of an independent medical
advisor as one factor in determining the nature and severity of a claimant’s impairment).
The ALJ also considered the opinions from Ms. Bailey and Ms. Morrison. AR
108. The ALJ noted that neither Ms. Bailey nor Ms. Morrison was an acceptable medical
source capable of providing a medical opinion. AR 108. 20 C.F.R. § 404.1513.
Statements from “other sources” are not entitled to the same weight given to “acceptable
medical sources.”

See 20 C.F.R. § 404.1513 (d)(1); SSR 06-03p.

The ALJ,

nevertheless, determined their opinions were entitled to some weight. AR 108. Ms.
Bailey’s and Ms. Morrison’s opinions indicated plaintiff was not precluded from
performing work tasks in any of the assessed areas of functioning. The ALJ agreed and
provided sufficient restrictions to accommodate plaintiff’s social work restrictions.
The ALJ did not discuss records from Dr. Ramos. Those records were dated prior
to plaintiff’s alleged disability onset date and before plaintiff ceased working. Dr. Ramos’
records were merely cumulative of other reports in the records, which the ALJ concluded
did not support a finding of disability.
The ALJ properly considered the evidence relating to plaintiff’s mental limitations.
The ALJ relied upon inconsistencies between the medical evidence and plaintiff’s
subjective complaints to find plaintiff’s complaints not fully credible.

To the extent

evidence in the record supported limitations, the ALJ included mental limitations in the
residual functional capacity that accommodated plaintiff’s difficulties in social
functioning.

See Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th Cir. 2002)

(approving the ALJ’s independent review of the medical evidence).
2. The ALJ Properly Considered Plaintiff’s Physical Limitations
The ALJ considered the evidence related to plaintiff’s physical impairments. He
concluded that plaintiff retained the ability to perform a range of light exertional work.
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AR 103-104. The ALJ discussed plaintiff’s history of shoulder surgery in 2004. AR 106,
483-504. The ALJ noted there were no recent treatment records for physical concerns to
support plaintiff’s complaints of present shoulder and hip symptoms. AR 106. The ALJ
gave weight to opinions from state agency medical consultants Laura Griffith, D.O., and
Jan Hunter, D.O., noting the opinions supported a conclusion plaintiff did not have
disabling physical impairments.

AR 108-109, 173-174, 186-187.

A medical

consultant’s opinion is an expert opinion from a highly qualified source that the ALJ must
consider. See 20 C.F.R. § 404.1527(f)(2); see also SSR 96-6p, 1996 WL 374180 (July
2, 1996). When assessments of state agency medical consultants are consistent with other
medical evidence in the record, as is the case here, they can provide substantial evidence
supporting the ALJ’s residual functional capacity assessment. See Stormo v. Barnhart,
377 F.3d 801, 807-08 (8th Cir. 2004).
This Court will not consider the new evidence plaintiff submitted to the Appeals
Council. The Appeals Council concluded the records did not relate to the period on or
before the ALJ’s decision. AR 2. A claimant may submit new evidence to the Appeals
Council with his request for review. 20 C.F.R. § 404.970(b). The regulations provide:
If new and material evidence is submitted, the Appeals Council shall
consider the additional evidence only where it relates to the period on or
before the date of the administrative law judge hearing decision. The
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.
Id.

Thus, before the Appeals Council will admit submitted evidence into the record, it

must be (1) new, (2) material, and (3) relate to the period on or before the date of the
ALJ’s decision. Id., see Whitney v. Astrue, 668 F.3d 1004, 1006 (8th Cir. 2012) (citing
Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir. 1990)).
The nature of the court’s review of the evidence a claimant submits to the Appeals
Council depends upon whether the Appeals Council admitted the evidence into the record.
Where the Appeals Council does not admit the submitted evidence into the record because
11

it is not new, material, or relate to the period on or before the ALJ’s decision, the Eighth
Circuit Court of Appeals has concluded the court may only review the Appeals Council’s
conclusion not to admit the evidence.
Cir. 1995).

See Box v. Shalala, 52 F.3d 168, 171 72 (8th

The court concludes that the Appeals Council did not err in not considering

the new evidence.

B. The ALJ Properly Developed the Record
The ALJ properly developed the record and had sufficient evidence to make an
informed disability decision.

Plaintiff asserts the ALJ should have scheduled a

consultative examination to evaluate his physical impairments.

Absent unfairness or

prejudice, reversal for failure to develop the record is not warranted. Shannon v. Chater,
54 F.3d 484, 486 (8th Cir. 1995). The ALJ permitted plaintiff, through his chosen
attorney representative, to present his best case for disability at the hearing. See Thomas
v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991) (noting that claimant bore burden of
proving disabilities and was responsible for presenting strongest case possible). Neither
plaintiff nor his representative indicated at the hearing or in the post-hearing brief that a
physical consultative examination was necessary. AR 371-372. The only development
plaintiff’s representative requested is that the ALJ permit him ten days to obtain a medical
source statement from plaintiff’s therapist. AR 131-132. The ALJ granted plaintiff’s
request. AR 132. An ALJ is not required to act as a claimant’s lawyer in a case, as the
ALJ is neither an advocate nor an adversary. See Clark v. Shalala, 28 F.3d 828, 830 (8th
Cir. 1994); see also Richardson v. Perales, 402 U.S. 389, 403 (1971) (noting that the
agency operates as an adjudicator, not an advocate or adversary).
The ALJ noted that although plaintiff received treatment for mental impairments,
he had not sought recent treatment for physical impairments, which suggested the physical
impairments were not as severe as alleged. AR 106. To the extent plaintiff submitted
new evidence to the Appeals Council that was dated after the ALJ’s decision, the new
12

evidence is properly considered as a part of his new application for benefits. The record
was adequately developed to permit the ALJ to make an informed disability decision. No
further development was needed. See Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir.
2013); see also Naber v. Shalala, 22 F.2d 186, 189 (8th Cir. 1994) (“‘[A]n ALJ is
permitted to issue a decision without obtaining additional medical evidence so long as
other evidence in the record provides a sufficient basis for the ALJ’s decision.’”).
VI.

CONCLUSION

For the reasons set forth herein, and without minimizing the seriousness of
plaintiff’s impairments, I find that the Commissioner’s determination that claimant was
not disabled is affirmed. Judgment shall be entered against plaintiff and in favor of the
Commissioner.
IT IS SO ORDERED this 17th day of June, 2016.

__________________________________
C.J. Williams
United States Magistrate Judge
Northern District of Iowa

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