Marchant v. Commissioner of Social Security

Filing 18

ORDER re 1 Complaint filed by Tammie M Marchant: The ALJ's decision is affirmed. Signed by Chief Magistrate Judge CJ Williams on 11/08/2017. (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
TAMMIE M. MARCHANT,
Plaintiff,

No. 17-CV-3025-CJW

vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

ORDER

Defendant.
___________________________
The claimant, Tammie M. Marchant (“claimant”), seeks judicial review of a final
decision of the Commissioner of Social Security (“the Commissioner”) denying her
application for disability and disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-34 (Act). Claimant contends that the Administrative
Law Judge (“ALJ”) erred in determining that claimant was not disabled. For the reasons
that follow, the ALJ’s decision is hereby affirmed.
I.

BACKGROUND

The Court adopts the facts as set forth in the parties’ Joint Statement of facts and,
therefore, will summarize only the pertinent facts. (Doc. 13). Claimant was 52 years
old when she allegedly became disabled and 55 years old at the time of the ALJ’s
decision.

(Id., at 2).

Claimant completed the eleventh grade and has past work

experience as a job coach, cook, supervisor, store owner, and sheltered workshop
supervisor. (Id.; AR 20).1

1

“AR” refers to the administrative record below.

On May 21, 2013, claimant protectively filed an application for disability and
disability insurance benefits alleging a disability onset date of January 9, 2013. (AR 14).
The Social Security Administration denied claimant’s application initially and on
reconsideration. (AR 14). On December 15, 2015, ALJ Michael D. Shilling held a
hearing, and on January 28, 2016, the ALJ found claimant was not disabled. (AR 1421). On January 26, 2017, the Appeals Council denied claimant’s request for review.
(AR 1-4).
On March 31, 2017, claimant filed her Complaint in this Court.

(Doc. 1).

Claimant and the Commissioner both consented to proceedings before the undersigned
magistrate, including final disposition of the case, and the Honorable Linda R. Reade,
United States District Court Judge, reassigned this case to the undersigned. (Doc. 8).
On October 25, 2017, the Court deemed this case fully submitted and ready for decision.
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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An
individual has a disability when, due to his physical or mental impairments, “he 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). If the claimant is able to
do work which exists in the national economy but is unemployed because of inability to
get work, lack of opportunities in the local area, economic conditions, employer hiring
practices, or other factors, the ALJ will still find the claimant not disabled.

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To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows the five-step sequential evaluation process outlined in the
regulations.

Kirby v. Astrue, 500 F.3d 705, 707-08 (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.

§ 416.920(a)(4)(i). “Substantial” work activity involves physical or mental activities.
“Gainful” activity is work done for pay or profit, even if the claimant did not ultimately
receive pay or profit.
Second, if the claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of the claimant’s physical and mental impairments.
§ 416.920(a)(4)(ii). If the impairments are not severe, then the claimant is not disabled.
An impairment is not severe if it does “not significantly limit [a] claimant’s physical or
mental ability to do basic work activities.” Kirby, 500 F.3d at 707.
The ability to do basic work activities means the ability and aptitude necessary to
perform most jobs. Bowen v. Yuckert, 482 U.S. 137, 141 (1987). These 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.; see also 20 C.F.R. § 404.1521.
Third, if the claimant has a severe impairment, then the Commissioner will
determine the medical severity of the impairment. 20 C.F.R. § 416.920(a)(4)(iii). 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. 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) and the demands of his past relevant work.
20 C.F.R. § 416.920(a)(4)(iv). If the claimant can still do his past relevant work, then
he is considered not disabled. (Id.). Past relevant work is any work the claimant
performed within the fifteen years prior to his application that was substantial gainful
activity and lasted long enough for the claimant to learn how to do it. § 416.960(b).
“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 [ ] her
physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003)
(citations and internal quotation marks omitted). The RFC is based on all relevant
medical and other evidence. The claimant is responsible for providing the evidence the
Commissioner will use to determine the RFC. Eichelberger v. Barnhart, 390 F.3d 584,
591 (8th Cir. 2004). If a claimant retains enough RFC to perform past relevant work,
then the claimant is not disabled.
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 there
is other work the claimant can do, given the claimant’s RFC, age, education, and work
experience. The Commissioner must show not only that the claimant’s RFC will allow
him to make the adjustment to other work, but also that other work exists in significant
numbers in the national economy. Eichelberger, 390 F.3d at 591. If the claimant can
make the adjustment, then the Commissioner will find the claimant not disabled. At Step
Five, the Commissioner has the responsibility of developing the claimant’s medical
history before making a determination about the existence of a disability. The burden of
persuasion to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004).

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III.

THE ALJ’S FINDINGS

The ALJ made the following findings at each step:
At Step One, the ALJ found that claimant had not engaged in substantial gainful
activity since January 9, 2013, the alleged onset date of her disability. (AR 16).
At Step Two, the ALJ found that claimant had the severe impairments of “obesity,
status post-cerebrovascular accident (CVA), mild degenerative disc disease of the right
shoulder, and degenerative disc disease of the cervical and lumbar spines.” (Id.). The
ALJ further discussed claimant’s other diagnoses and explained why he found that those
other diagnoses were not severe medical impairments within the meaning of the Act.
(AR 16-17).
At Step Three, the ALJ found that none of claimant’s impairments met or equaled
a presumptively disabling impairment listed in the relevant regulations. (AR 17).
At Step Four, the ALJ found claimant had the residual functional capacity to
perform light work with the following limitations:
[claimant] can lift and carry 20 pounds occasionally and 10 pounds
frequently. She can stand or walk a total of 6 hours in an 8-hour workday
and sit up to 6 hours in an 8-hour workday. She can occasionally climb
stairs, but never climb ropes, scaffolds or ladders. She can occasionally
balance, stoop, crouch, kneel, or crawl.
(AR 17). Also at Step Four, the ALJ determined that claimant was able to perform past
relevant work as a sheltered workshop supervisor and, therefore, did not reach Step Five.
(AR 20-21).
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

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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 (citations and internal
quotation marks omitted). The Eighth Circuit Court of Appeals 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) (citations and
internal quotation marks omitted).
In determining whether the Commissioner’s decision meets this standard, a court
“consider[s] all of the evidence that was before the ALJ, but . . . do[es] not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (citation omitted). A
court considers both evidence that 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, “do[es] 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) (quoting Naber v. Shalala, 22 F.3d 186,
188 (8th Cir. 1994)). Instead, if, after reviewing the evidence, the Court “find[s] 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]

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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” (citation omitted).).
V.

DISCUSSION

Claimant argues that the ALJ’s residual functional capacity assessment at Step
Four was flawed because it was not supported by substantial evidence from a treating or
examining source. (Doc. 14). Claimant primarily argues that the ALJ’s reliance on the
opinions of only the state agency medical consultants, as opposed to the opinions of
treating or examining sources, was erroneous. Claimant argues that the ALJ should have
obtained evidence from claimant’s treating sources, and that the ALJ’s failure to do so
amounted to a failure to adequately develop the record. (Id.).

In support of this

argument, claimant argues that the opinions of non-treating or non-examining sources
alone cannot constitute substantial evidence on the record as a whole. (Id., at 3-4).
Claimant further argues that the state medical consultants’ opinions upon which the ALJ
based his decision were out-of-date because those opinions were rendered in November
2013, and January 2014, while additional evidence only came into existence between
March 2014, and October 2015. (Id.).
Claimant’s suggestion that an ALJ’s decision cannot stand in the complete absence
of a treating source’s opinion is erroneous. Rather, where an ALJ does not rely on
opinions from treating or examining sources, there must be some other medical evidence
in order for the ALJ’s opinion to be supported by substantial evidence on the record.

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Harvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir. 2004) (“It is true that we do not
consider the opinions of non-examining consulting physicians standing alone to be
‘substantial evidence.’” (emphasis added)). As in Harvey, the ALJ in the instant case
did not consider only those opinions rendered by the state agency medical consultants.
(Id.). The ALJ in both cases relied on the non-treating and non-examining source
opinions as only part of the record. (Id.). Thus, the ALJ’s opinion does not fail on its
face.
It is necessary, then, to consider whether the remainder of the evidence on the
record could provide substantial evidence upon which the ALJ could base his opinion.
That is, within the context of claimant’s allegations, the Court must turn to whether the
ALJ could properly rely on the opinions of the state agency consultants, even though
their opinions were rendered prior to the formulation of additional medical evidence in
support of claimant’s application for benefits. Social Security Regulation 96-6p, which
was in effect at the time of the ALJ’s decision, provides that an ALJ must obtain an
updated medical opinion if “additional medical evidence is received that in the opinion of
the administrative law judge . . . may change the State agency medical or psychological
consultant’s finding that the impairment(s) is not equivalent in severity to any impairment
in the Listing of Impairments.” SSR 96-6p (emphasis added). See also Chandler v.
Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“[B]ecause state agency review
precedes ALJ review, there is always some time lapse between the consultant’s report
and the ALJ hearing and decision. The Social Security regulations impose no limit on
how much time may pass between a report and the ALJ’s reliance on it.” (citing SSR 966p)). The ALJ did not opine that additional evidence could change the state agency
consultants’ findings. Further, claimant did not argue that the ALJ’s failure to issue such
a finding was erroneous. Thus, the ALJ’s declination to order additional opinions on this
basis will not be found improper.

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It is necessary to determine whether the ALJ’s duty to fully and fairly develop the
record created an obligation to obtain an opinion from a treating or examining source.
Although the ALJ’s opinion must be supported by some medical evidence, this standard
does not require that a treating or examining source opinion always be included in the
record. See Harvey v. Colvin, 839 F.3d 714, 717 (8th Cir. 2016). Rather, the ALJ’s
residual functional capacity assessment must merely be supported by “some medical
evidence of the claimant’s ability to function in the workplace,” and an “ALJ is not
limited to considering medical evidence exclusively.” (Id. (citation and internal quotation
marks omitted)). An ALJ is only required to contact treating sources “when the medical
evidence received from them is inadequate to determine a claimant’s disability.” Cox v.
Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. § 416.912).
Claimant argues that the ALJ should have contacted Dr. Abhishake Kaapuraala,
claimant’s treating physician, for additional information because the information of
record was inadequate to support the ALJ’s determination. Claimant fails, however, to
fully develop this argument. On the Court’s reading, the record evidence seems plenty
adequate to support the ALJ’s decision. In fact, the ALJ thoroughly discusses both the
medical evidence presented and claimant’s own complaints before finally determining
that although claimant was not disabled, her various ailments warranted some degree of
restriction. (AR 17-20).
Further, in determining claimant’s residual functional capacity, the ALJ
considered, in part, claimant’s actions that contradicted her claims regarding her physical
limitations. For example, the ALJ noted that “claimant collected unemployment through
the third quarter of 2013, which required her to represent that she was able [and] willing
to work, which is inconsistent with her application for disability, which was filed in the
second quarter of 2013.” (AR 19). Additionally, the ALJ considered claimant’s activities
of daily living in determining claimant’s residual functional capacity and found that those

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activities were inconsistent with claimant being totally disabled. (AR 20). Therefore,
the Court finds that the medical evidence of record was adequate to support the ALJ’s
findings and the ALJ did not err in not contacting claimant’s treating physician.
Finally, claimant urges that the ALJ should have ordered a consultative
examination. Specifically, claimant again turns to the medical testing—two separate
MRI’s and an X-Ray—conducted after the state agency consultants rendered their
opinions as support for this contention. However, the ALJ specifically discussed all three
tests referenced by claimant (AR 16, 19) and upon a review of the record, the Court finds
that the medical records provided the necessary information for the ALJ to reach an
informed decision. Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.) (“[I]t is reversible
error for an ALJ not to order a consultative examination when such an evaluation is
necessary for him to make an informed decision.” (citation and internal quotation marks
omitted)). The ALJ’s thorough discussion indicates that these tests were considered in
determining the claimant’s residual functional capacity, and the Court finds that the
record permitted the ALJ to make an informed decision. Therefore, the Court declines
to adopt the claimant’s argument that the ALJ should have ordered a consultative
examination.
VI.

CONCLUSION

For the aforementioned reasons, the ALJ’s decision is hereby affirmed.
IT IS SO ORDERED this 8th day of November, 2017.

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

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