Paster v. Berryhill
Filing
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MEMORANDUM OPINION - For the reasons set forth above, the Court concludes that the Commissioners final decision that plaintiff was not disabled is supported by substantial evidence on the record as a whole. The decision of the Commissioner is affirmed. An appropriate Judgment Order is issued herewith.. Signed by Magistrate Judge David D. Noce on 9/23/19. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEBORAH R. PASTER,
Plaintiff,
v.
ANDREW SAUL, 1
Commissioner of Social Security,
Defendant.
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No. 4:18 CV 1043 DDN
MEMORANDUM OPINION
This action is before the Court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the application of plaintiff Deborah
R. Paster for disability insurance benefits under Title II of the Social Security Act, 42
U.S.C. § 401, et seq. The parties consented to the exercise of plenary authority by a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth
below, the decision of the Administrative Law Judge (ALJ) is affirmed.
I. BACKGROUND
Plaintiff Deborah R. Paster applied for Title II disability benefits on July 29,
2014, at the age of 54. (Tr. 177-83). Plaintiff alleges she was disabled on account of
fatigue, headaches, and stress. (Tr. 25). Plaintiff’s application was initially denied in
November 2014. (Tr. 79-83). She requested a hearing before an ALJ. (Tr. 84). The ALJ
heard testimony from plaintiff and a vocational expert on March 24, 2017. (Tr. 43-70).
After the hearing, the ALJ sent plaintiff for a consultative examination, which was
1
The Honorable Andrew M. Saul is now the Commissioner of Social Security. In that
capacity, Mr. Saul is substituted as the defendant in this suit. Fed. R. Civ. P. 25(d). No
further action needs to be taken to continue this suit. 42 U.S.C. § 405(g) (last sentence).
conducted on May 5, 2017. (Tr. 585-600).
On August 25, 2017, the ALJ decided that
plaintiff was not disabled under the Social Security Act. (Tr. 11-19). The Appeals
Council denied plaintiff’s request for review. (Tr. 1). The decision of the ALJ stands as
the final decision of the Commissioner of Social Security.
II. MEDICAL HISTORY
The Court adopts the parties' several statements of uncontroverted material facts
(Docs. 20, 25). These facts, taken together, present a fair and accurate summary of the
medical record and testimony at the evidentiary hearing. The Court discusses specific
facts as they are relevant to the parties’ arguments.
IV. DECISION OF THE ALJ
To determine whether a claimant qualifies for Social Security disability benefits,
the ALJ must conduct a five-step sequential evaluation. 2 See 20 CFR § 404.1520.
The ALJ found that plaintiff would last meet the insured status required by Title II
of the Act on December 31, 2017. At Step 1, the ALJ found that plaintiff had not
performed substantial gainful activity since the alleged onset date of disability, May 1,
2014. (Tr. 13). At Step 2, the ALJ found that plaintiff had the severe impairment of
degenerative joint disease. (Id.). At Step 3, the ALJ found that plaintiff did not have an
2
If at any step in the sequential evaluation the claimant is found to be disabled or not
disabled, her claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). At Steps One
through Three, the Commissioner determines: (1) whether the claimant has engaged in
substantial gainful activity since the alleged onset date of disability, (2) whether she has
any severe mental or physical impairment(s), and (3) whether the severity of those
impairment(s) meets or medically equals the severity of any impairment on the
Commissioner’s list of presumptively disabling impairments. Id. at (a)(4)(i)-(iii). If
needed, the Commissioner assesses the claimant’s residual functional capacity (RFC) to
perform work, which is used at Step Four to determine whether she can perform her past
relevant work, and at Step Five (if necessary) to determine whether she can make an
adjustment to other work that exists in significant numbers in the national economy. Id.
at (a)(4)(iv)-(v), (e).
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impairment or combination of impairments that met or medically equaled an impairment
listed in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 14).
Despite the limitations from plaintiff’s impairments, the ALJ found that plaintiff
retained the residual functional capacity to perform the full range of sedentary work as
defined in the regulations. 3 (Id.). In formulating her RFC assessment, the ALJ considered
and discussed not only plaintiff’s severe impairment of degenerative joint disease, but
also considered and discussed additional impairments and symptoms that she alleged
were disabling. (Tr. 14-18). These impairments and related symptoms included stress,
headaches/migraines, sleeping all day, hypertension, hypothyroidism, diabetes, sleep
apnea, low back pain, hip pain, knee pain, chest pain, left arm pain, dizziness, and
obesity. (Id.). The ALJ found that plaintiff’s allegations regarding her symptoms were not
entirely consistent with the medical evidence and other evidence in the record and found
that she had failed to carry her burden to prove more restrictive functional limitations
than those included in the ALJ's RFC assessment. (Tr. 18).
Relying on the vocational expert’s testimony in response to a hypothetical
question, the ALJ concluded at Step 4 that plaintiff could perform her past relevant work
as a collections agent. (Tr. 19). Accordingly, the ALJ found plaintiff was not disabled
and did not proceed to Step 5 in the sequential evaluation.
V. GENERAL LEGAL PRINCIPLES
The Court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and
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Residual functional capacity is defined as “the most you can still do despite your
limitations.” 20 C.F.R. § 404.1545(a)(1). “Sedentary work involves lifting no more than
10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers,
and small tools. . . . Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a). “Occasionally” means
occurring from very infrequently up to occurring one-third of the time; thus, periods of
standing or walking should generally total no more than about two hours during an eighthour workday. SSR 83-10.
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are supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the Court considers
evidence that both supports and detracts from the Commissioner's decision. Id. As long
as substantial evidence supports the decision, the Court may not reverse it merely because
substantial evidence exists in the record that would support a contrary outcome or
because the Court would have decided the case differently. See Krogmeier v. Barnhart,
294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment or combination of impairments that can be expected to result in death
or that has lasted or could be expected to last for at least 12 continuous months. 42
U.S.C. § 1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework,
described in footnote 2 above, is used to determine whether an individual is disabled. 20
C.F.R. § 404.1520(a)(4); see also Pate-Fires, 564 F.3d at 942 (describing the five-step
process).
VI. DISCUSSION
Plaintiff claims that the ALJ (a) failed to advise her of her right to counsel or ask
probing questions during the evidentiary hearing and (b) failed to properly evaluate
plaintiff’s claim at Step 2 of the sequential evaluation. The Court disagrees.
A. Plaintiff's right to counsel and the ALJ's conduct of the hearing
Plaintiff contends that the ALJ failed to advise her of her right to counsel and
failed to ask sufficiently probing questions of her as an unrepresented claimant. (Doc.
19). These arguments are without merit.
Social Security regulations provide that if a claimant is not represented by an
attorney and is initially denied benefits, the Commissioner “will include with the notice
of that determination or decision information about your options for obtaining an attorney
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to represent you in dealing with us. We will also tell you that a legal services
organization may provide you with legal representation free of charge if you satisfy the
qualifying requirements applicable to that organization.” 20 C.F.R. § 404.1706.
Disability claims under the Social Security Act are non-adversarial, and the ALJ
has a well-recognized duty to develop the record. See Whitman v. Colvin, 762 F.3d 701,
707 (8th Cir. 2014). Accordingly, if the claimant is without counsel, the ALJ must ask
probing questions of the claimant to ensure the record is well-developed. Reeder v.
Apfel, 214 F.3d 984, 988 (8th Cir. 2000). “[T]he ALJ is not required to function as the
claimant's substitute counsel, but only to develop a reasonably complete record.” Clark v.
Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994).
The record reflects that plaintiff was both informed of her right to counsel and the
ALJ asked sufficiently probing questions for development of the record.
The ALJ
repeatedly advised her of her right to counsel. (Tr. 158, 162-63). In advance of her
hearing, the ALJ provided plaintiff with a Notice of Hearing which informed plaintiff of
her right to representation in the body of the Notice, and included a two-page handout
that described, in detail, her right to representation. (Id.). Additionally, prior to her
administrative hearing, plaintiff signed a waiver of representation form that complied
with all of the procedures outlined in the Hearings, Appeals and Litigation Law
(HALLEX) Manual I-2-1-80. (Tr. 132-33). On the form, plaintiff confirmed that she
understood her right to be represented. (Tr. 132). She acknowledged that she did not have
a representative and stated that she did not have any questions. (Id.). With her signature,
she attested to the following: “I understand my right to representation at the hearing. I
voluntarily waive this right and I request to proceed without representation. I
acknowledge that, along with the Notice of hearing, I received a list of organizations that
provide legal services.” (Id.). Additionally, in June 2015, plaintiff obtained an attorney
who submitted his representative form to the agency, but he subsequently withdrew his
representation in August 2016. (Tr. 105, 126-27). In January and February 2017, plaintiff
wrote letters indicating she had engaged attorneys who had agreed to a limited
representation while they evaluated her claim. (Tr. 262-63, 267-68). Accordingly, the
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Commissioner fulfilled his duty to inform plaintiff of her right to representation, and the
record reflects that plaintiff ultimately waived that right.
The ALJ also sufficiently questioned plaintiff in order to develop the record. (Doc.
19). Plaintiff had repeated opportunities to present the agency with her subjective
complaints regarding her allegedly disabling limitations. The State agency developed the
record by sending plaintiff forms that inquired about her medical conditions, limitations,
daily activities, medicines, and medical treatment, and provided her with the opportunity
to make any other remarks about her condition. (Tr. 210-16, 220-27). After plaintiff
retained counsel, the hearing office contacted the attorney and asked him to assist
plaintiff in submitting medical records and in updating the agency about recent medical
treatment, medications, and work background. (Tr. 237-47). Plaintiff and her counsel
responded to the agency’s requests and submitted updated information. (Tr. 250-53). The
agency secured plaintiff’s authorization to assist her in obtaining her medical records.
(Tr. 570). In fact, all of the medical evidence in the record was obtained by the agency on
plaintiff’s behalf. (Tr. 321, 384, 387, 443-44, 568-70, 585). Finally, the ALJ further
developed the medical record after the hearing by ordering a consultative evaluation of
plaintiff. (Tr. 585-600).
With respect to the administrative hearing, plaintiff argues that if the ALJ had
asked her probing questions about her headaches, the ALJ would have found she is
limited to simple, routine, repetitive tasks, which would meet the GRID 4 requirements.
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The medical-vocational guidelines, or GRIDS, “are a set of charts listing certain
vocational profiles that warrant a finding of disability or non-disability.” McCoy v.
Astrue, 648 F.3d 605, 613 (8th Cir. 2011). The GRIDS are set forth at 20 CFR Part 404,
Subpart P, Appendix 2. Plaintiff’s past relevant work was skilled, with a specific
vocational preparation (SVP) of 4. SVP describes “[t]he amount of time required for a
typical claimant to learn the techniques, acquire the information, and develop the facility
needed for average performance in a job.” Program Operations Manual System (POMS),
http://policy.ssa.gov/poms.nsf/lnx/0425001001. An SVP of four is defined as “[o]ver 3
months up to and including 6 months.” Id.
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(Id.). However, it is unclear what additional information plaintiff would have provided at
the hearing in response to these questions that the ALJ did not otherwise have.
At her consultative examination, the examining physician, Veronica Weston,
M.D., reported on her careful examination of plaintiff and confirmed that plaintiff had
uncontrolled hypertension and headaches that were secondary to hypertension, which
caused exertional limits consistent with sedentary work. (Tr. 591).
Both the agency and the ALJ provided plaintiff with numerous opportunities to
describe her symptoms. Plaintiff reported in her disability report that she sleeps “all the
time because of headaches,” and her headaches appear “at least 3 to 4 times a day.” (Tr.
234). Plaintiff described her headaches to medical professionals, on social security forms,
and to the CE. The ALJ noted that from June 2014 to March 2017, medical records
showed her headaches were “occasional global tension type headaches” that “were better
with Clonodine” and stable when plaintiff was compliant with medication. (Tr. 15). He
noted that plaintiff visited the emergency room for her headaches, but that was when she
did not have medication. (Tr. 17). The ALJ was not required to ask plaintiff questions
that were already answered in the record, or were not supported by medical evidence in
the record.
Plaintiff argues that the ALJ should have solicited testimony about whether her
impairments interfered with her ability to focus, concentrate, or persist at tasks. She
argues that such interference would prevent her from performing her past relevant work,
but provides no evidence other than her subjective complaints that her headaches in fact
cause such interference. Plaintiff argues that she “did not understand” what information
she was supposed to provide regarding her limitations. However, as discussed above,
plaintiff knowingly waived her right to representation and the ALJ was not required to
substitute as her counsel. The ALJ’s decision reflects that he understood plaintiff’s
allegations regarding her symptoms. (Tr. 14-18). He lawfully found that these alleged
limitations were not consistent with the record. (Tr. 18). Accordingly, substantial
evidence on the record as a whole supports the ALJ’s conclusion.
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Finally, plaintiff also argues that the ALJ failed to ask the vocational expert
probing questions at the administrative hearing. The vocational expert testified that the
Dictionary of Occupational Titles (DOT) classified plaintiff’s past relevant work as a
collections agent at the light work level. (Tr. 66). However, the vocational expert testified
that the job was usually performed at the sedentary level. Plaintiff argues that the ALJ
should have asked the vocational expert to explain the obvious conflict between this
testimony and the DOT’s classification. However, the ALJ did not need to resolve the
conflict, because he credited the DOT classification over the vocational expert’s
testimony and found that the job was light work as generally performed. (Tr. 19).
Plaintiff concedes that the work she performed as a collections agent was sedentary
exertional work as actually performed, as testified by the vocational expert and found by
the ALJ. (Id.).
Plaintiff argues that she did not provide work history and background information
on her job as she performed it in 2009, and the ALJ should have inquired into whether the
skill requirements had increased between 2009 and 2014. (Doc. 19). The job of a
collections agent was classified as semi-skilled/skilled both generally and as actually
performed, and the ALJ did not find that plaintiff had limitations that would prevent the
performance of the mental requirements of that work. (Id.). The ALJ did not need to
consider transferable skills because he found that plaintiff could do her past relevant
work. (Id.). He did not need to adopt the vocational expert’s responses to his questions
about off-task behavior because he found that such limitations were not supported by the
record. (Id.). Accordingly, the ALJ complied with all of the procedures required under
the Act and fulfilled his duty to fully and fairly develop the record. The ALJ’s conclusion
that plaintiff could return to her past work as actually performed is supported by
substantial evidence on the record as a whole.
B. Step 2 Evaluation
In her second point, plaintiff argues that the ALJ failed to properly evaluate her
symptoms from her uncontrolled hypertension and headaches secondary to hypertension
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at Steps Two and Four. (Doc. 19). Even though the ALJ did not find these impairments to
be severe at Step Two, once the ALJ found she had the one severe impairment, his failure
to designate another impairment as “severe” at Step Two was not error, because he
properly continued in the evaluation process and considered the effects of all impairments
throughout that process. Harper v. Colvin, No. 1:14 CV 31, 2015 WL 5567978, at *6
(E.D. Mo. Sept. 22, 2015). See also Winn v. Comm'r of Soc. Sec., 615 Fed.Appx. 315,
326 (6th Cir. 2015); Groberg v. Astrue, 415 Fed.Appx. 65, 67 (10th Cir. 2011); Carolyn
A. Kubitschek & Jon C. Dubin, Social Security Disability Law & Procedure in Federal
Court § 3:14 (Apr. 2018). This procedure was consistent with the regulations that require
consideration of the combined effect of all of a claimant’s impairments without regard to
whether any such impairment, if considered separately, would be considered not severe.
See SSR 96-8p (“In assessing RFC, the adjudicator must consider limitations and
restrictions imposed by all of an individual’s impairments, even those that are not
‘severe.’”).
The ALJ did not find plaintiff’s hypertension and headaches to be severe
impairments at Step Two, but this was not error, as he discussed them in detail when
making the RFC assessment at Step Four. (Tr. 14-18). The ALJ recognized that the
records documented episodes of uncontrolled hypertension that resulted in complaints of
headache. (Tr. 17). He noted, however, that there was no persuasive evidence that
plaintiff’s hypertension has resulted in complications such as left ventricular failure,
atherosclerotic heart disease, retinal hemorrhages, exudates, vascular accidents,
cerebrovascular insufficiency, renal failure or encephalopathy. (Id.). There was no
persuasive evidence that plaintiff’s hypertension resulted in dizziness, flushed face, head
pain, epistaxis, nervousness or fatigue. (Id.). There was no persuasive evidence that any
treating physician had determined that plaintiff’s hypertension was uncontrollable despite
compliance with treatment and that plaintiff’s hypertension resulted in severe limitations
of function lasting twelve consecutive months in duration, despite treatment. (Id.).
At Step Four, the ALJ’s evaluation was well-supported, and he identified a
number of factors that undermined plaintiff’s testimony. Plaintiff argues that there was no
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evidence that she was not compliant with medication. (Doc. 19). The ALJ reached the
opposite conclusion – he found that “[a]ctually, the records are replete with
documentation that the claimant was not compliant with regard to her medication and
treatment recommendations.” (Tr. 18). For example, plaintiff reported that she was out of
medication. (Tr. 15, 337). She continued to smoke, even though she was advised to quit.
(Tr. 15, 445). She was advised to lose weight but failed to do so. (Tr. 15, 366, 512, 526).
She was not checking her blood pressure at home. (Tr. 15, 445). She did not keep a diet
log. (Id.). In March 2015, plaintiff reported that her primary care physician had increased
her medication, but she had not picked up the new medication. (Tr. 16, 408). An ALJ can
appropriately consider that a claimant’s subjective complaints are undermined by failure
to comply with treatment. See 20 C.F.R. § 404.1529, SSR 16-3p.
The ALJ properly considered that when compliant with medication, plaintiff’s
symptoms were controlled. (Tr. 18). “An impairment which can be controlled by
treatment or medication is not considered disabling.” Medhaug v. Astrue, 578 F.3d 805,
813 (8th Cir. 2009) (quotations omitted). The ALJ noted that when plaintiff sought
emergency care for her high blood pressure, the doctor administered medication, and her
blood pressure decreased. (Tr. 14-18). The ALJ considered that the fact that plaintiff’s
symptoms resolved with treatment undermined the severity of her complaints. Further, as
noted above, the ALJ discussed that even if and when plaintiff’s hypertension was
uncontrolled, the record did not support a conclusion that it, or the associated headaches,
resulted in limitations greater than those included in the RFC assessment. (Tr. 17-18).
As long as substantial evidence supports the ALJ’s decision, the Court may not
reverse the final administrative decision merely because substantial evidence exists in the
record that would support a contrary outcome or because the Court would have decided
the case differently. See Krogmeier, 294 F.3d at 1022. In this case, the ALJ lawfully
reviewed the medical evidence and all other evidence of record in determining plaintiff
was not disabled, and substantial evidence supports that determination.
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VII. CONCLUSION
For the reasons set forth above, the Court concludes that the Commissioner’s final
decision that plaintiff was not disabled is supported by substantial evidence on the record
as a whole. The decision of the Commissioner is affirmed. An appropriate Judgment
Order is issued herewith.
/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on September 23, 2019.
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