Hosch v. Commissioner of Social Security
Filing
17
MEMORANDUM Opinion and Order affirming Commissioners determination. Judgment shall be entered against Plaintiff Amanda Marie Hosch and in favor of Defendant Commissioner of Social Security. Signed by Magistrate Judge CJ Williams on 3/30/2016. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN WATERLOO DIVISION
AMANDA MARIE HOSCH,
Plaintiff,
No. C15-2014-CJW
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER
Defendant.
____________________
Plaintiff Amanda Marie Hosch seeks judicial review of a final decision of the
Commissioner of Social Security (the Commissioner) denying her application for Social
Security supplemental security income benefits (SSI) under Title XVI of the Social
Security Act, 42 U.S.C. § 401 et seq. (Act). Hosch contends that the administrative
record (AR) does not contain substantial evidence to support the Commissioner’s decision
that she was not disabled during the relevant period. For the reasons that follow, the
Commissioner’s decision is affirmed.
I.
BACKGROUND
Hosch was born in 1991, completed high school, and did not attend special
education. AR 18. She has no past relevant work history. AR 18. The Administrative
Law Judge (ALJ) determined that there was work which the claimant could perform such
as a kitchen helper, cook helper, or cleaner/housekeeper. AR 19.
Hosch filed her application for SSI on May 8, 2012, alleging a disability onset
date of February 1, 2012. AR 20-21. She contends that she is disabled due to anxiety,
depression and personality disorder.
AR 19-20. Hosch’s claims were denied initially
and on reconsideration. AR 95-98, 109-111. She then requested a hearing before an
ALJ. ALJ Eric S. Basse conducted a hearing on August 20, 2013 (the Hearing), AR 2462, and issued a decision denying Hosch’s claim on November 15, 2013. AR 6-18.
Hosch sought review by the Appeals Council, which denied review on January 30,
2015 (AR 1-4), leaving the ALJ’s decision as the final decision of the Commissioner.
On March 20, 2015, Hosch filed a complaint (Doc. No. 3) in this court seeking review
of the Commissioner’s decision. On April 6, 2015, with the consent of the parties (Doc.
6), the Honorable Edward J. McManus 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 her previous work but cannot, considering her 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,
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
2
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).
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),
3
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 will find the
claimant is not disabled. If the claimant cannot make an adjustment to other work, then
the
Commissioner
will
find
that
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
the
claimant
is
disabled.
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).
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III.
ALJ’S FINDINGS
The ALJ made the following findings:
1. The claimant has not engaged in substantial gainful activity since May 8,
2012, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: bipolar affective
disorder, major depressive disorder, personality disorder (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work at all
exertional levels but with the following non-exertional limitations: she can have only
occasional interaction with the public, coworkers, and supervisors. She is limited to
simple routine tasks, involving only simple work-related decisions and few workplace
changes. There should be no requirement for close verbal communication to carry
out tasks. She should not be required to work as part of a team. She will need to work
at definitive tasks that are performed on her own.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on March 7, 1991, and was 21 years old, which is defined
as a younger individual age 18-49, on the date the application was filed (20 CFR
416.963).
7. The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past
relevant work (20 CFR 416.968).
9. 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 CFR 416.969 and 416.969(a)).
AR 12-19.
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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
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
6
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.”).
V.
DISCUSSION
Hosch argues the ALJ’s decision is flawed for two reasons:
1.
The ALJ’s RFC assessment failed to include limitations in
concentration, persistence, or pace.
2.
The Commissioner has not sustained her burden of proof in this case.
These two arguments will be addressed 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
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function in the workplace.” Lewis, 353 F.3d at 646. At Step Four, the claimant has the
burden to prove her 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.
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. The ALJ Properly Evaluated Plaintiff’s RFC and Posed a Proper
Hypothetical Question to the VE
The ALJ was not required to include specific, moderate limitations on
concentration, persistence, or pace in his RFC assessment or hypothetical question to the
Vocational Expert (VE), simply because he found plaintiff had these limitations in his
“paragraph B” criteria analysis at Step Three (AR 12). Contra Pl’s Br. at 5-10. The RFC
analysis is different than the Step Three analysis. Social Security regulations and rulings
describe the distinction between the ratings of limitations in the four mental functional
categories (daily living, social functioning, concentration, persistence or pace, and
decompensation) 1 and the limitations in an RFC determination.
20 C.F.R. §
416.920a(d)(1),(2),(3); Social Security Ruling (“SSR”) 96-8p. The degree of limitation
These categories correspond to the criteria in “paragraph B” of most of the mental impairments
found in § 12.00 of the Listing of Impairments. See 20 C.F.R. Part 404, Subpt. P, App. 1, §
12.00.
1
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in the four categories determines whether a claimant has a severe mental impairment and
whether such impairment meets or equals a listing. 20 C.F.R. § 416.920a(d)(1),(2); SSR
96-8p.
Once the ALJ determines that the claimant’s mental impairment is severe, but does
not meet or equal a listing, an ALJ must then assess the claimant’s RFC. 20 C.F.R.
§ 416.920a(d)(3); SSR 96-8p. Although an ALJ must evaluate a claimant’s limitations in
these four categories, these ratings are not the same as an RFC assessment. SSR 96-8p.
Because the rating of limitations in the four categories and the limitations in the RFC
assessment do not serve the same purpose, an ALJ need not recite the “paragraph B”
limitations in his RFC finding. Id; Gann v. Colvin, No. C 14-4026-MWB, 2015 WL
1242706, at *26 (N.D. Iowa Mar. 18, 2015) (unpublished) (rejecting argument that
findings at Step Two and Three automatically require ALJ to include corresponding
limitations in RFC); Crane v. Colvin, No. 4:13-046-DGK-SSA, 2014 WL 460858, at *4
(W.D. Mo. Feb. 5, 2014) (unpublished) (distinguishing the “special technique” used at
Steps Two and Three from RFC assessment).
Here, the ALJ recognized that the limitations identified in the “paragraph B”
criteria are used to rate the severity of mental impairments at Steps Two and Three of the
sequential process (AR 12). The ALJ further stated that the RFC analysis requires a more
detailed assessment by itemizing the various functions contained in the broad “paragraph
B” categories (AR 12). The ALJ reviewed the evidence and made such an assessment.
The ALJ noted that plaintiff was alert, she maintained good energy, she had normal eye
contact and full affect, and her speech was regular in rate and volume (AR 15, 490, 622,
629, 641, 655, 658, 663-664). Additionally, plaintiff’s insight and judgment were fair,
and her psychomotor activity was normal (AR 490, 561, 579, 637, 641, 644, 647, 655,
658, 660). The ALJ also noted that plaintiff reported decreased impulsivity and good
concentration on medication (AR 15, 490, 629, 631, 633). Based on these findings, the
ALJ limited plaintiff to simple, routine tasks, involving only simple, work-related
9
decisions and few workplace changes (AR 12). The ALJ stated that this RFC finding
reflected the degree of limitation he found in the “paragraph B” analysis (AR 12).
These limitations also accounted for moderate limitations in concentration,
persistence, or pace. The Eighth Circuit Court of Appeals and several district courts have
held that moderate limitations in concentration, persistence, or pace are consistent with the
simple, routine, repetitive tasks involved in unskilled work. See Howard, 255 F.3d at
582; Ge Xiong v. Colvin, No. 13-396 (DWF/JSM), 2014 WL 460857, at *27 (D. Minn.
Feb. 5, 2014) (unpublished); Garrett v. Colvin, No. 4:12CV3243, 2013 WL 3984575, at
*4 (D. Neb. Aug. 2, 2013) (unpublished); Hall v. Astrue, No. 2:11-CV-02138, 2012 WL
2049454, at *8 (W.D. Ark. June 6, 2012) (unpublished); Welsh v. Astrue, No. C10-0120,
2011 WL 3303459, at *10 (N.D. Iowa July 27, 2011) (unpublished); Harris v. Astrue,
No. 09-0514-CV-W-GAF-SSA, 2010 WL 1936019, at *7 (W.D. Mo. May 12, 2010)
(unpublished). Thus, the ALJ’s RFC finding reflected the degree of limitation he found
in the “paragraph B” analysis (AR 12-13).
Plaintiff asks the court to take judicial notice of an undated, uncertified, incomplete,
and redacted order of an appeals council in an unrelated case and consider it an admission
by the Commissioner that “limitations to simple, routine and repetitive tasks do not
adequately account for moderate difficulties in maintaining concentration, persistence, or
pace.” Pl’s Br. At 8. The court declines to do so. That order is not part of the record
in this case. This court may consider only evidence within the record certified by the
Commissioner. See 42 U.S.C. §405(g) (“The court shall have the power to enter, upon
the pleadings and transcript of the record, a judgment affirming, modifying, or reversing
the decision of the Commissioner for Social Security, with or without remanding the cause
for a rehearing.”); Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997) (holding that
Section 405(g) generally precludes consideration on review of evidence outside the record
before the Commissioner during the administrative proceedings). Moreover, although
under Federal Rule of Evidence 201(b), a court “may” take judicial notice of a “fact that
10
is not subject to reasonable dispute because it . . . can be accurately and readily determined
from sources whose accuracy cannot reasonable be questioned,” the court is not bound to
do so, and in any event, the undated, uncertified, incomplete, and redacted order is, for
those reasons, subject to reasonable dispute.
Even if the ALJ had not included any mental limitations in his RFC finding,
however, he still would not have erred because moderate limitations in the “paragraph B”
criteria do not necessarily require mental limitations in the RFC assessment. Flint v.
Colvin, No. 13-CV-1220 PAM/SER, 2014 WL 2818665, at *27 (D.Minn. June 23, 2014)
(unpublished) (ALJ not required to include “paragraph B” finding of moderate limitations
in concentration, persistence, or pace in RFC determination). Plaintiff’s argument that
she was precluded from performing unskilled work as defined in the Program Operations
Manual System (“POMS”) lacks merit for the same reason. Regardless, the POMS have
no legal force and are not binding on the Commissioner. Berger v. Apfel, 200 F.3d 1157,
1161 (8th Cir. 2000).
The ALJ was not required to recite his Step Three “paragraph B” findings in his
RFC assessment or hypothetical question to the VE. The ALJ properly conducted a
separate RFC analysis and accounted for plaintiff’s mental limitations.
2. The Commissioner Has Sustained Her Burden of Proof
At Step Five, the ALJ properly relied on VE testimony in finding plaintiff could
perform work existing in significant numbers in the national economy (AR 18). Contra
Pl’s Br. at 11-14. VE testimony is substantial evidence when it is based on a correctly
phrased hypothetical question that captures the concrete consequences of a claimant’s
deficiencies. Cox v. Astrue, 495 F.3d 614, 620 (8th Cir. 2007).
Plaintiff argues that the ALJ was required to include the “paragraph B” limitations
in his hypothetical question to the VE. Pl’s Br. At 12. As discussed above, however, the
rating of limitations in the four “paragraph B” categories, and the limitations in the RFC
11
assessment, do not serve the same purpose. 20 C.F.R. § 416.920a(d)(1),(2),(3); SSR 968p. An ALJ is not required to recite the “paragraph B” findings in his RFC assessment.
Because the ALJ’s hypothetical question reflected his properly supported RFC finding, the
VE’s response provides substantial evidence to support the Commissioner’s conclusion that
plaintiff was not disabled during the relevant time period (AR 12-13, 56-57). Cox, 495 F.3d
at 620.
Thus, the Commissioner has sustained her burden of proving that plaintiff could
perform work existing in significant numbers in the national economy.
VI.
CONCLUSION
For the reasons set forth herein, and without minimizing the seriousness of
plaintiff’s impairments, the court finds that the Commissioner’s determination that Hosch
was not disabled is affirmed. Judgment shall be entered against Hosch and in favor of
the Commissioner.
IT IS SO ORDERED this 30th day of March, 2016.
__________________________________
C.J. Williams
United States Magistrate Judge
Northern District of Iowa
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