Hanke v. Berryhill
Filing
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MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 05/23/2018. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KRISTI HANKE,
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Plaintiff,
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vs.
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NANCY A. BERRYHILL, Deputy
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Commissioner for Operations, Social Security )
Administration,
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Defendant.
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Case No. 4:17-cv-01323-AGF
MEMORANDUM AND ORDER
This action is before this Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Kristi Hanke was not disabled, and
thus not entitled to disability insurance benefits under Title II of the Social Security Act, 42
U.S.C. §§ 401-434, or supplemental security income (“SSI”) under Title XVI of the Act,
42 U.S.C. §§ 1381-1383f. For the reasons set forth below, the decision of the
Commissioner will be affirmed.
BACKGROUND
Plaintiff, who was born on January 9, 1975, protectively filed her applications for
benefits in May 2015, alleging disability beginning May 22, 2014, due to anxiety,
depression, and attention deficit disorder (“ADD”). On June 29, 2015, Plaintiff’s
applications were denied at the initial administrative level, and she thereafter requested a
hearing before an Administrative Law Judge (“ALJ”).
A hearing was held on October 21, 2016, at which Plaintiff, who was represented by
counsel, and a vocational expert (“VE”) testified. By decision dated November 18, 2016,
the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform the
full range of work at all exertional levels as defined by the Commissioner’s regulations,
except that Plaintiff had the following non-exertional limitations:
[She] is limited to simple, routine, tasks; must have minimal changes in job
setting and duties; no contact with the general public; only occasional
contact with coworkers and supervisors; no handling of customer
complaints; no fast paced production work; can only work in small, familiar
groups of five or less people; and contact with coworkers and supervisors,
while occasional, can only be brief and superficial.
Tr. 14.
The ALJ next found that Plaintiff could perform certain unskilled jobs listed in the
Dictionary of Occupational Titles (“DOT”) (order picker, hand packager, or small products
assembler), which the VE testified that a hypothetical person with Plaintiff’s RFC and
vocational factors (age, education, work experience) could perform and that were available
in significant numbers in the national economy. Accordingly, the ALJ found that Plaintiff
was not disabled under the Social Security Act. Plaintiff filed a timely request for review
by the Appeals Council of the Social Security Administration, which was denied on March
10, 2017. Plaintiff has thus exhausted all administrative remedies, and the ALJ’s decision
stands as the final agency action now under review.
Plaintiff argues that the ALJ’s RFC finding is not supported by medical evidence
and is erroneous because the ALJ failed to properly evaluate the medical opinion evidence
provided by Plaintiff’s primary care provider, Cassandra Edwards, D.O., and Plaintiff’s
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licensed professional counselor, Theresa Schroeder, L.P.C. Plaintiff asks that the ALJ’s
decision be reversed and that she be awarded benefits, or alternatively, that the case be
remanded for further development of the record.
Agency Records, Medical Records, Evidentiary Hearing, and ALJ’s Decision
The Court adopts the statement of facts set forth in Plaintiff’s Statement of
Uncontroverted Facts, which is contained in Plaintiff’s brief (ECF No. 14), as amended by
Defendant (ECF No. 19-1), and Defendant’s Statement of Additional Facts (ECF No.
19-2), which Plaintiff has not opposed. Together, these statements provide a fair
description of the record before the Court. Specific facts will be discussed as needed to
address the parties’ arguments.
DISCUSSION
Standard of Review and Statutory Framework
In reviewing the denial of Social Security disability benefits, a court must review
the entire administrative record to determine whether the ALJ’s findings are supported by
substantial evidence on the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992 (8th
Cir. 2011). The court “may not reverse merely because substantial evidence would
support a contrary outcome. Substantial evidence is that which a reasonable mind might
accept as adequate to support a conclusion.” Id. (citations omitted). A reviewing court
“must consider evidence that both supports and detracts from the ALJ’s decision. If, after
review, [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
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the decision of the Commissioner.” Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016)
(citations omitted). Put another way, a court should “disturb the ALJ’s decision only if it
falls outside the available zone of choice.” Papesh v. Colvin, 786 F.3d 1126, 1131 (8th
Cir. 2015) (citation omitted). A decision does not fall outside that zone simply because
the reviewing court might have reached a different conclusion had it been the finder of fact
in the first instance. Id.
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a medically
determinable impairment which has lasted or can be expected to last for not less than 12
months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated regulations,
found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation process to
determine disability. The Commissioner begins by deciding whether the claimant is
engaged in substantial gainful activity. If not, the Commissioner decides whether the
claimant has a “severe” impairment or combination of impairments. A severe impairment
is one which significantly limits a person’s physical or mental ability to do basic work
activities. 20 C.F.R. § 404.1520(c). A special technique is used to determine the severity
of mental disorders. This technique calls for rating the claimant’s degree of limitations in
four areas of functioning: activities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3).
If the impairment or combination of impairments is severe and meets the duration
requirement, the Commissioner determines at step three whether the claimant’s
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impairment meets or is medically equal to one of the deemed-disabling impairments listed
in the Commissioner’s regulations. If not, the Commissioner asks at step four whether the
claimant has the RFC to perform his past relevant work. If the claimant cannot perform
his past relevant work, the burden of proof shifts at step five to the Commissioner to
demonstrate that the claimant retains the RFC to perform work that is available in the
national economy and that is consistent with the claimant’s vocational factors – age,
education, and work experience. See, e.g., Halverson v. Astrue, 600 F.3d 922, 929 (8th
Cir. 2010). When a claimant cannot perform the full range of work in a particular
category of work (medium, light, and sedentary) listed in the regulations, the ALJ must
produce testimony by a VE (or other similar evidence) to meet the step-five burden. See
Baker v. Barnhart, 457 F.3d 882, 894 (8th Cir. 2006).
RFC Finding and Weight of Medical Opinions
“Because a claimant’s RFC is a medical question, an ALJ’s assessment of it must be
supported by some medical evidence of the claimant’s ability to function in the
workplace.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). However, “there is
no requirement that an RFC finding be supported by a specific medical opinion.” Id.
Here, the Court concludes that the ALJ’s RFC determination is supported by sufficient
medical evidence.
Under the applicable social security regulations,1 the opinion of a treating physician
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For claims filed on or after March 27, 2017, the regulations have been amended to
eliminate the treating physician rule. The new regulations provide that the Social Security
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is “normally entitled to great weight.” Thomas v. Berryhill, 881 F.3d 672, 675 (8th Cir.
2018) (citation omitted). “However, the Commissioner may discount or even disregard
the opinion of a treating physician where other medical assessments are supported by better
or more thorough medical evidence,” and “[t]he Commissioner may also assign little
weight to a treating physician’s opinion when it is either internally inconsistent or
conclusory.” Id. “In considering how much weight to give a treating physician's
opinion, an ALJ must also consider the length of the treatment relationship and the
frequency of examinations.” Casey v. Astrue, 503 F.3d 687, 692 (8th Cir. 2007).
Only an acceptable medical source can be considered a “treating source” who can
establish the existence of a medically determinable impairment. Zeier v. Colvin, No.
415CV00156RWS (SPM), 2016 WL 1068995, at *8 (E.D. Mo. Feb. 26, 2016) (citing
Social Security Ruling 06-03p, 2006 WL 2329939, at *2), report and recommendation
adopted, No. 4:15 CV 156 RWS, 2016 WL 1060371 (E.D. Mo. Mar. 17, 2016). Licensed
professional counselors are not acceptable medical sources, but they are considered “other”
medical sources who may present evidence of the severity of the claimant’s impairment
and the effect of the impairments on the claimant’s ability to work, but whose opinion may
be discounted if inconsistent with the evidence in the record. Lawson v. Colvin, 807 F.3d
962, 967 (8th Cir. 2015); see also Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005)
Administration “will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative medical finding(s),
including those from your medical sources,” but rather, the Administration will consider
all medical opinions according to several enumerated factors, the “most important” being
supportability and consistency. 20 C.F.R. § 404.1520c.
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(“In determining what weight to give ‘other medical evidence,’ the ALJ has more
discretion and is permitted to consider any inconsistencies found within the record.”)
Here, the ALJ did not entirely disregard the opinion of Plaintiff’s primary care
physician, Dr. Edwards, or Plaintiff’s licensed professional counselor, Schroeder, and the
ALJ provided good reasons for assigning those opinions little weight. Dr. Edwards
opined that Plaintiff had no useful ability to function in almost all areas of mental
functioning, including working in coordination with others, making simple work-related
decisions, and maintaining attention for a two-hour segment. Tr. 461. Dr. Edwards
further opined that Plaintiff could not use public transportation due to her severe anxiety.
Tr. 462. The ALJ concluded that Dr. Edwards’s opinions were inconsistent with her own
treatment records, the records of Plaintiff’s prior primary care physician, and the single
treatment record of a psychiatrist with whom Plaintiff visited once, but to whom she never
returned. As the ALJ noted, these records reflected that Plaintiff’s mental status
examinations were consistently normal, and they further indicated that Plaintiff had taken
the same medication at the same dosage for years, she believed the medication was
effective, and she refused any adjustment in medication. Moreover, as the ALJ noted, Dr.
Edwards had only become Plaintiff’s primary care provider in January 2016, and had only
treated Plaintiff a few times (in total, four).
The ALJ also considered the RFC questionnaire completed by Schroeder (Tr. 438),
who opined that Plaintiff was unable to meet competitive standards or had no useful ability
to function in a number of areas, including working with others and making simple work
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related decisions. The ALJ properly considered Schroeder’s opinion as one from an
“other” medical source, in accordance with Social Security Ruling 06-03p, and discounted
her opinion as inconsistent with her own treatment records and with the other medical
evidence discussed above.
The ALJ further discounted Dr. Edwards’s and Schroeder’s opinions to the extent
they were based on Plaintiff’s subjective complaints that she could never leave the house
and could not maintain sufficient attention to complete even simple, routine tasks. The
ALJ properly concluded that these complaints were contradicted by the evidence in the
record that Plaintiff was able to schedule and attend medical appointments on a regular
basis through transportation arranged by her insurance company; took public
transportation to grocery shop or visit a pharmacy on occasion; regularly cared for her
eight-year-old son; attended at least two school events for her son and felt comfortable with
the small group of people present at those events; and was willing to see a new primary
care physician (Dr. Edwards) without apparent distress. Finally, the ALJ correctly noted
that Plaintiff’s application for and receipt of unemployment benefits during the relevant
period undermined her allegation of disability. See Smith v. Colvin, 756 F.3d 621, 625
(8th Cir. 2014) (“Applying for unemployment benefits adversely affects credibility,
although it is not conclusive, because an unemployment applicant must hold himself out as
available, willing and able to work.”).
The ALJ found that the opinion (Tr. 50, 58) of non-examining state agency
psychologist, Margaret Sullivan, Ph.D., was more consistent with the record. Dr. Sullivan
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opined that Plaintiff had only moderate limitations in activities of daily living and in
maintaining concentration, persistence, or pace, and only mild limitations in social
functioning. However, the ALJ found that Plaintiff was more restricted in social
functioning than Dr. Sullivan had assessed. In particular, based on Dr. Edwards’s and
Schroeder’s opinions, as well as the other evidence of record, the ALJ reduced the social
interaction, skill level, and pace of work in Plaintiff’s RFC, limiting her to only simple,
routine tasks; minimal changes in job setting and duties; no fast paced production work;
working with only small, familiar groups of no more than five people; no contact with the
public; and only occasional, brief, and superficial contact with coworkers and supervisors.
Although the record could also support a different conclusion, the Court cannot say
that the ALJ’s decision was outside the zone of choice. In Julin v. Colvin, 826 F.3d 1082
(8th Cir. 2016), the Eighth Circuit affirmed an ALJ’s similar RFC finding as supported by
medical evidence, notwithstanding the claimant’s insistence that she could not tolerate any
human interaction and her treating physician’s opinion in support of that contention.
There, as here, the ALJ “reduced the skill level, social interaction, and pace of work” based
on the treating physician’s opinion. Julin, 826 F.3d at 1089. But the ALJ also
“considered the views of the state-agency medical consultants, and . . . conducted an
independent review of the medical evidence” and other evidence in the record, including
evidence that the claimant attended medical appointments, shopped, reported that
medication was effective in relieving her symptoms, and refused or resisted changes in
medication or course of treatment. Id. at 1087-89.
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In sum, upon review of the record, the Court concludes that the ALJ’s decision is
supported by substantial evidence in the record as a whole.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED. A separate Judgment shall accompany this Memorandum and Order.
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated on this 23rd day of May, 2018.
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