Johnson v. Colvin
Filing
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OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is reversed pursuant to sentence four of 42 U.S.C. §405(g). IT IS FURTHER ORDERED that this matter is remanded to the Commissioner for further consideration of the record.A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 11/4/16. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANNTUWNETTE JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
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No. 4:15CV1934HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review
pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383 (c)(3) of the final decision of
Defendant denying Plaintiff’s application for supplemental security income (SSI)
benefits under Title XVI, 42 U.S.C. §§ 1381 et seq. For the reasons set forth
below, the Court will reverse and remand the Commissioner's denial of Plaintiff's
application.
Facts and Background
On January 16, 2014 Administrative Law Judge Julie K. Bruntz conducted a
hearing in the matter in West Des Moines, Iowa and in Creve Coeur, Missouri.
The hearing was recorded. Plaintiff appeared to testify. Plaintiff appeared with
counsel. A vocational Expert, Carmen Mitchell, also appeared to testify. The
Plaintiff was over 18 years old and IQ tests from 2009 revealed a full scale IQ of
74, verbal IQ of 77 and a full scale IQ of 75 on the WAIS-3.
Plaintiff testified she lived with her mother and 7 month old son. She further
testified that she suffers from neurofibromatosis. It bothers her right foot and
causes difficulty in standing for periods of time and aches a lot. She testified she
has neurofibromas on her back and left thigh area. The ones on her back cause her
to have back problems. She testified the one on her thigh is really sensitive and
aches and swells up. Plaintiff also noted that she has neurofibromas on her head
which cause her to have headaches. These headaches last for about two hours and
prevent her from doing her daily activities.
Plaintiff further testified that she has difficulty focusing and completing
tasks. As an example she cited sweeping the floor and cleaning the bathroom and
noted that she might forget to sweep the floor even though that was her intent.
The ALJ heard testimony from Ms. Mitchell, a vocational expert. The
Vocational Expert testified her testimony would be consistent with the Dictionary
of Occupational Titles and if not she would so advise the ALJ, as well as state the
basis for her opinion. She further testified upon hypothetical of the ALJ that if an
individual was limited to simple, routine tasks she could return to past relevant
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work. Furthermore, an individual with a high school education and younger and
past work as noted in the record, had jobs available as a laundry worker which is
medium unskilled, or housekeeper which is at the light unskilled level. There
would also be jobs as a dining room attendant that is medium unskilled. The ALJ
also included mental limitation and added the ability to push and pull, including
the operation of hand and foot controls, would be unlimited within the weights of
the exertional levels of medium, light, and sedentary. The ALJ also included that
she could occasionally climb ramps and stairs, never climb ladders, ropes and
scaffolds, occasionally balance, stoop, kneel, crouch and crawl, avoid hazards
such as heights and dangerous machinery. The Vocational Expert concluded there
would be jobs as a cafeteria attendant in the light exertional level. Also available
would be a job as an inserting machine operator, which is light, unskilled and
document preparer, which is sedentary, unskilled. Jobs as an addresser, stuffing
and putting labels on envelopes would be available at the sedentary, unskilled
level. Another job noted as available by Ms. Mitchell was that of a touch up
screener, of the sedentary, unskilled variety. Lastly, she testified that positions as
packing machine operator in the medium, unskilled level, were available for
Plaintiff.
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Finally, the Vocational Expert testified that if one had to work at a slow pace
for one third of the day and /or was unable to concentrate for two hour segments
none of the aforementioned jobs would be available and the person could not
sustain the jobs or any work on a full time competitive basis.
The ALJ concluded that the Plaintiff had the severe impairments
of borderline intellectual functioning and a history of neurofibromatosis Type I.
The ALJ further concluded Plaintiff was not disabled.
The Appeals Council denied Plaintiff’s request for review on November 3,
2015. The decision of the ALJ is now the final decision for review by this court.
Statement of Issues
The issues in a Social Security case are whether the final decision of the
Commissioner is consistent with the Social Security Act, regulations, and
applicable case law, and whether the findings of fact by the ALJ are supported by
substantial evidence on the record as a whole. The issues in this case are whether
the ALJ’s credibility assessment is supported by substantial evidence, whether the
ALJ’s step three finding is supported by substantial evidence, and whether the
ALJ’s RFC assessment is supported by substantial evidence. Also for
consideration is the issue of whether the ALJ failed to properly address sufficient
limitations of concentration, persistence and pace in the RFC.
Standard For Determining Disability
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The Social Security Act defines as disabled a person who is “unable 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. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir.2010). The impairment must be “of such severity that [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 the national economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for him, or whether
he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
A five-step regulatory framework is used to determine whether an individual
claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a); see
also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.2011) (discussing the five-step
process). At Step One, the ALJ determines whether the claimant is currently
engaging in “substantial gainful activity”; if so, then he is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(I), 416.920(a)(4)(I); McCoy, 648 F.3d at 611. At Step Two, the
ALJ determines whether the claimant has a severe impairment, which is “any
impairment or combination of impairments which significantly limits [the
claimant's] physical or mental ability to do basic work activities”; if the claimant
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does not have a severe impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a)
(4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c); McCoy, 648 F.3d at 611. At
Step Three, the ALJ evaluates whether the claimant's impairment meets or equals
one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the
“listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant has
such an impairment, the Commissioner will find the claimant disabled; if not, the
ALJ proceeds with the rest of the five-step process. 20 C.F.R. §§ 404.1520(d),
416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the ALJ must assess the claimant's “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his] limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.2009) (citing 20 C.F.R. § 404.1545 (a)
(1)); see also 20 C.F.R. §§ 404.1520(e), 416.920(e). At Step Four, the ALJ
determines whether the claimant can return to his past relevant work, by comparing
the claimant's RFC with the physical and mental demands of the claimant's past
relevant work. 20 C.F.R. §§ 404.1520(a) (4) (iv), 404.1520(f), 416.920(a) (4) (iv),
416.920(f); McCoy, 648 F.3d at 611. If the claimant can perform his past relevant
work, he is not disabled; if the claimant cannot, the analysis proceeds to the next
step. Id... At Step Five, the ALJ considers the claimant's RFC, age, education, and
work experience to determine whether the claimant can make an adjustment to
other work in the national economy; if the claimant cannot make an adjustment to
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other work, the claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is
disabled. Moore, 572 F.3d at 523. At Step Five, the burden shifts to the
Commissioner to establish that the claimant maintains the RFC to perform a
significant number of jobs within the national economy. Id.; Brock v. Astrue, 674
F.3d 1062, 1064 (8th Cir.2012).
RFC
A claimant's Residual Functional Capacity (RFC) is the most an individual
can do despite the combined effects of all of his or her credible limitations. See 20
C.F.R. § 404.1545. An ALJ's RFC finding is based on all of the record evidence,
including the claimant's testimony regarding symptoms and limitations, the
claimant's medical treatment records, and the medical opinion evidence. See
Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir.2010); see also 20 C.F.R. §
404.1545; Social Security Ruling (SSR) 96–8p. An ALJ may discredit a claimant's
subjective allegations of disabling symptoms to the extent they are inconsistent
with the overall record as a whole, including: the objective medical evidence and
medical opinion evidence; the claimant's daily activities; the duration, frequency,
and intensity of pain; dosage, effectiveness, and side effects of medications and
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medical treatment; and the claimant's self-imposed restrictions. See Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir.1984); 20 C.F.R. § 404.1529; SSR 96–7p.
A claimant's subjective complaints may not be disregarded solely because
the objective medical evidence does not fully support them. The absence of
objective medical evidence is just one factor to be considered in evaluating the
claimant's credibility and complaints. The ALJ must fully consider all of the
evidence presented relating to subjective complaints, including the claimant's prior
work record, and observations by third parties and treating and examining
physicians relating to such matters as:
(1) the claimant's daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant's pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant's functional restrictions.
Although the ALJ bears the primary responsibility for assessing a claimant's
RFC based on all relevant evidence, a claimant's RFC is a medical question.
Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.2001) (citing Lauer v. Apfel, 245
F.3d 700, 704 (8th Cir.2001)). Therefore, an ALJ is required to consider at least
some supporting evidence from a medical professional. See Lauer, 245 F.3d at 704
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(some medical evidence must support the determination of the claimant's RFC);
Casey v. Astrue, 503 F .3d 687, 697 (the RFC is ultimately a medical question that
must find at least some support in the medical evidence in the record). An RFC
determination made by an ALJ will be upheld if it is supported by substantial
evidence in the record. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.2006).
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him to reject the claimant's complaints.
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir.2005). “It is not enough that the
record contains inconsistencies; the ALJ must specifically demonstrate that he
considered all of the evidence.” Id. The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th
Cir.2004). The ALJ need only acknowledge and consider those factors. Id.
Although credibility determinations are primarily for the ALJ and not the court, the
ALJ's credibility assessment must be based on substantial evidence. Rautio v.
Bowen, 862 F.2d 176, 179 (8th Cir.1988). The burden of persuasion to prove
disability and demonstrate RFC remains on the claimant. See Steed v. Astrue, 524
F.3d 872, 876 (8th Cir. 2008).
ALJ Decision
The ALJ here utilized the five-step analysis as required in these cases. The
ALJ determined at Step One that Plaintiff had not engaged in substantial gainful
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activity through the date of the application, July 26, 2012. The ALJ found at Step
Two that Plaintiff had the severe impairments of borderline intellectual
functioning and history neurofibromatosis Type I. At Step Three, the ALJ found
that Plaintiff did not suffer from an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
As required, prior to Step Four, the ALJ determined the Residual Functional
Capacity of Plaintiff to perform a full range of work at all exertional levels but
with additional limitations of simple, routine tasks, pushing and pulling including
the operation of hand and foot controls would be limited within the sedentary, light
and medium exertional demands; occasionally balance, stoop, kneel, crouch, crawl
and climb ramps and stairs but never climb ladders, ropes and scaffolds; must
avoid hazards such as heights and dangerous machinery.
At Step Four it was the finding of the ALJ that Plaintiff is unable to perform
any past relevant work.
Finally, at Step Five, the ALJ found that Plaintiff could perform other work
that existed in significant numbers in the national economy. The ALJ, therefore,
found Plaintiff not disabled, and denied the benefits sought by her.
Judicial Review Standard
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The Court’s role in reviewing the Commissioner’s decision is to determine
whether the decision “‘complies with the relevant legal requirements and is
supported by substantial evidence in the record as a whole.’” Pate–Fires v. Astrue,
564 F.3d 935, 942 (8th Cir.2009) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th
Cir.2008)). “Substantial evidence is ‘less than preponderance, but enough that a
reasonable mind might accept it as adequate to support a conclusion.’” Renstrom
v. Astrue, 680 F.3d 1057, 1063 (8th Cir.2012) (quoting Moore v. Astrue, 572 F.3d
520, 522 (8th Cir.2009)). In determining whether substantial evidence supports the
Commissioner’s decision, the Court considers both evidence that supports that
decision and evidence that detracts from that decision. Id. However, the court
“‘do[es] not reweigh the evidence presented to the ALJ, and [it] defer[s] to the
ALJ’s determinations regarding the credibility of testimony, as long as those
determinations are supported by good reasons and substantial evidence.’” Id.
(quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.2006)). “If, after
reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s
findings, the court must affirm the ALJ’s decision.’” Partee v. Astrue, 638 F.3d
860, 863 (8th Cir.2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th
Cir.2005)).
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Courts should disturb the administrative decision only if it falls outside the
available “zone of choice” of conclusions that a reasonable fact finder could have
reached. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.2006). The Eighth
Circuit has repeatedly held that a court should “defer heavily to the findings and
conclusions” of the Social Security Administration. Hurd v. Astrue, 621 F.3d 734,
738 (8th Cir. 2010); Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001).
Discussion
1. Did the ALJ Properly Address Sufficient Limitations of Concentration,
Persistence and Pace in the RFC?
Here, the ALJ found Johnson had a moderate limitation in the area of
“maintaining concentration, persistence and pace”. The ALJ then concluded that
Johnson was limited to simple routine tasks, which did not address Johnson’s pace
limitations. The ALJ’s finding was insufficient. (citing Logan-Wilson v. Colvin,
2014 WL 4681459, at *5-6 (E.D. Mo. Sept. 19, 2014); Newton, 92 F.3d at 691,
695; Rojas v. Colvin, 2013 WL 6669065, *2 (a limitation to simple, unskilled work
did not incorporate a sufficient limitation in concentration, persistence or pace),
Porter v. Colvin, 2015 WL 3843268, at *7 (W.D. Mo. June 22, 2015); Leeper v.
Colvin, 2014 WL 4713280, at *10 (E.D. Mo. Sept. 22, 2014) (unskilled work did
not encompass a limitation in concentration, persistence and pace); Cain v. Colvin,
2015 WL 2092411, *10 (E.D. Mo. May 5, 2015) (“The ‘simple’ and ‘repetitive’
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language failed to capture all of plaintiff's moderate difficulties in concentration,
persistence or pace, despite the ALJ's own finding that plaintiff suffered from these
limitations.”). The reasoning from Logan-Wilson is especially applicable in this
case because the court found that “while the tasks themselves may be simple and
rote, the pace in which [Logan-Wilson] is to accomplish them is not
accommodated by limitation.” Id. An additional finding that Johnson could
perform routine work did not address the pace with which she could perform those
rote tasks.
Remand is appropriate for proper consideration of Plaintiff’s mental RFC.
Denney v. Colvin, 2016 WL 901695, *2 (W.D. Mo. Mar. 9, 2016) (reversal is
warranted when the ALJ relied on a DDS opinion that included a moderate
limitation in the ability to maintain attention and concentration for extended
periods, but then “The fact that [a claimant] tries to maintain her home and does
her best to engage in ordinary life activities is not inconsistent with her complaints
of pain, and in no way directs a finding [of disability].” Draper v. Barnhart, 425
F.3d 1127 (8th Cir. 2005). In McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.
1982), confirmed that the test for disability is whether the claimant has, “the ability
to perform the requisite physical acts day in and day out, in the sometimes
competitive and stressful conditions in which real people work in the real world.”
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The ALJ therefore failed to sufficiently explain how Plaintiff’s activities of daily
living supported a finding that Plaintiff could sustain the exertional requirements as
noted by the ALJ. This is more than a mere “deficiency in opinionwriting…[which had] no practical effect on the outcome of the case”. This was an
“incomplete analyses” of the evidence, which should, “serve as a basis for
remand.” Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005).
2. Did the ALJ Properly Determine Plaintiff’s Residual Functional Capacity?
The ALJ found that Plaintiff could perform simple, routine tasks at all
exertional levels, with some additional postural and hazard limitations. The ALJ
concluded from these things without in depth analysis as is required in these types
of circumstances. The record is devoid of considered analysis which the conclusion
deserves to support it on the record.
The ALJ has a, “duty to develop the record fully and fairly,” even when the
claimant is represented by counsel. See Wilcutts v. Apfel, 143 F.3d 1134, 1137-8
(8th Cir. 1998). The ALJ failed to provide sufficient analysis to support her theory
that, in the real world, Plaintiff could, perform as concluded by the ALJ in her RFC
assessment which necessarily referenced Plaintiff’s limitations.
Here the ALJ failed to make probing inquiry to ascertain the limits, if any,
of Plaintiff’s functioning. The ALJ failed to ask “probing questions” to determine
Plaintiff’s exertional limitations, the location, duration, frequency and intensity of
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Plaintiff’s pain or other symptoms, factors that precipitated or aggravated the
symptoms and any measures other than treatment Plaintiff used to relieve pain or
other symptoms. See 20 CFR § 416.929(c); SSR 96-7p. This was not a mere
“deficiency in opinion-writing…[which had] no practical effect on the outcome of
the case.” This was an “incomplete analyses” of the evidence, which should,
“serve as a basis for remand.” Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir.
2005).
Conclusion
After careful examination of the record, the Court finds the Commissioner's
determination as detailed above is not supported by substantial evidence on the
record as a whole, and therefore, the decision will be reversed and remanded for
further consideration.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of
Social Security is reversed pursuant to sentence four of 42 U.S.C. §405(g).
IT IS FURTHER ORDERED that this matter is remanded to the
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Commissioner for further consideration of the record.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 4th day of November, 2016.
_________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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