Peters v. Astrue

Filing 18

MEMORANDUM AND ORDER that the Commissioner's decision is affirmed; The appeal is denied; and Judgment in favor of the Defendant will be entered in a separate document. Ordered by Chief Judge Laurie Smith Camp. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CAROL PETERS,
Plaintiff,

4:12CV3233

vs.
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration;
Defendant.

This matter is before the Court on the denial, initially and on reconsideration, of
the Plaintiff’s disability insurance benefits (“DIB”) under the Social Security Act (“Act”),
42 U.S.C. §§ 401, et seq., and supplemental security income (“SSI”) benefits under Title
XVI of the Act, 42 U.S.C. §§ 1381, et seq.
PROCEDURAL HISTORY
Plaintiff Carol Peters (“Plaintiff”) filed an application for disability insurance
benefits on April 21, 2010. (Tr. 43.) Plaintiff’s claim was denied initially on June 1, 2010
(Tr. 43, 45-48), and on reconsideration on August 2, 2010 (Tr. 44, 50-53). A hearing
was held before an Administrative Law Judge on July 20, 2011, and on August 10,
2011. (Tr. 13-18.) Following the hearing, the ALJ found that Plaintiff was not “disabled”
as defined in the Act. (Tr. 13-18, 24, 43-44.) Specifically, the ALJ found that Plaintiff
failed to meet her burden and Plaintiff did not have an impairment or combination of
impairments listed in or medically equal to one contained in 20 C.F.R. part 404, subpart
P, appendix 1.

(Tr. 15-16.) The ALJ determined that Plaintiff retained the residual

functional capacity (“RFC”) to perform unskilled, light work, which did not preclude either
her performance of her past work as a motel maid, or the performance of a full range of

unskilled light work, including the representative occupations of laundry work and
cafeteria attendant. (Tr. 17.)
Plaintiff appealed the ALJ’s decision to the Appeals Council on August 28, 2011,
and submitted additional evidence for the Appeals Council to consider. (Tr. 1-2, 8.) On
September 26, 2012, the Appeals Council, having reviewed the additional evidence
submitted by Plaintiff regarding her disability claim, found no basis for changing the
ALJ’s decision and denied Plaintiff’s request for review. (Tr. 1-5.)
FACTUAL BACKGROUND
In Plaintiff’s application for DIB, she stated that she was born in 1956, and
alleged that she became disabled beginning April 1, 2007. (Tr. 95.) Plaintiff’s insured
status under Title II of the Act expired on December 31, 2009. (Tr. 15, 111.) In her
Disability Report, she alleged disability due to a “bad back.” (Tr. 115.)
A.

Testimony at the Administrative Hearing
At the administrative hearing on July 20, 2011, Plaintiff's attorney confirmed that

Plaintiff had not returned any of the paperwork sent by the agency, including the
interrogatories, list of medications, and work history, and Plaintiff was given leave to
submit the documents. (Tr. 22, 25.) The attorney confirmed that Plaintiff had not
received any medical treatment and that her only medication was over-the-counter
ibuprofen. (Tr. 25-26.) Plaintiff's attorney claimed that Plaintiff could not return to her
past work because of cognitive difficulties and neurological deterioration that was
present in her family history. (Tr. 26.) He suggested that the ALJ could observe her
testimony and determine her functioning and whether a consultative examination was
warranted. (Tr. 26.)
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Plaintiff testified at her administrative hearing that she had received her high
school diploma, was of average intelligence, could read and write, and could read a
newspaper or magazine. (Tr. 27-28.) Plaintiff had been married for 34 years. (Tr. 28.)
Plaintiff had a driver’s license, but had stopped driving two years earlier because her
husband was concerned about the way she backed out of the driveway. (Tr. 29-30.)
Plaintiff worked as a motel maid for most of her work history, and spent a short time
cleaning houses for people with special needs. (Tr. 28-29.) Plaintiff testified that she
“decided to retire” after she was hurt at work and because her husband received his
retirement settlement. (Tr. 30.) She then clarified that she decided to quit work because
she could not clean rooms fast enough. (Tr. 31.)
In describing her daily activities, Plaintiff stated she cared for a dog, a cat, and a
parrot. (Tr. 31.) She testified that she cleaned all of her house once a day and did
laundry. (Tr. 31-32.) Her interests and hobbies included watching television, camping,
fishing, and attending weekly car races. (Tr. 32-34.) She handled her own money, had a
checkbook, and paid the bills. (Tr. 38.) Plaintiff did the grocery shopping. (Tr. 38.)
Because she did not drive, Plaintiff's husband was with her when she left the house and
either her husband or son was with her at home. (Tr. 38-39.)
Plaintiff told the ALJ that she had applied for disability because her husband told
her she had a bad back. (Tr. 35.) Plaintiff explained that she was burned two years
earlier when she used a heating pad without a cover. (Tr. 35-36.) She did not receive
any treatment for the burn because she did not like doctors. (Tr. 36.) Plaintiff did not
show the ALJ the scar because it was on her lower back. (Tr. 37.) Plaintiff testified that
the scar did not give her any problems, and then stated that she had pain in her back
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since she fell on the ice in high school. (Tr. 37.) She did not think she could be “fast
enough” to go back to motel work. (Tr. 37.)
Steven Kuhn, a vocational expert, testified in response to a hypothetical question
posed by the ALJ. (Tr. 39-40.) The hypothetical individual was the same age as Plaintiff
and had the same education and work experience. (Tr. 40.) The ALJ first asked the
vocational expert to assume the questions related to an individual who could lift or carry
50 pounds occasionally and 25 pounds frequently and had no limitation on the ability to
stand, sit, or walk. (Tr. 40.) The vocational expert testified that such an individual could
return to Plaintiff's past work as a motel cleaner. (Tr. 40.) If the individual were restricted
to work with light exertion, i.e., lifting and carrying 20 pounds occasionally and 10
pounds frequently, the individual could still perform the motel cleaner job. (Tr. 40.) The
vocational expert testified that such an individual could perform other unskilled, light
work, including the representative positions of laundry worker and cafeteria attendant.
(Tr. 40-41.)
B.

New Evidence Submitted to the Appeals Council
Although Plaintiff did not submit any medical evidence to the ALJ, Plaintiff

submitted medical records to the Appeals Council following the ALJ’s denial of her
claim. (Tr. 4-5, 172-298.) Plaintiff also submitted third-party statements from friends,
Stephen Mason and Janice Temple, in February 2012. (Tr. 4, 156-59.)
Two days after the administrative hearing, on July 22, 2011, Plaintiff began to
receive care from Steven Saathoff, M.D., at Falbrook Family Health Center, and asked
to be tested for Huntington’s disease. (Tr. 184.)

Plaintiff had a family history of

Huntington’s disease in her mother, brother, niece, and six out of ten maternal aunts
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and uncles. (Tr. 185.) Plaintiff had not had any laboratory testing performed on her
blood since giving birth to her youngest child 30 years earlier (Tr. 28, 184), but she
wanted to be tested because she was exhibiting “spasmodic jerking” of her extremities.”
(Tr. 184). Her physical examination revealed that she exhibited involuntary movement of
all extremities consistent with Huntington’s chorea. (Tr. 186.) Plaintiff tried to cover the
involuntary movements by crossing her legs and arms, keeping them close to her body
to prevent them from moving. (Tr. 186.) She was observed to have difficulty getting on
and off the examination table because of her gait instability. (Tr. 186.) Her gait revealed
involuntary limb movement disorder. (Tr. 186.) Plaintiff did not want to try any
medications and specifically requested that only laboratory work be performed. (Tr.
186.) Dr. Saathoff’s only treatment recommendation was that Plaintiff have an annual
physical examination. (Tr. 186.)
The next month, Plaintiff met with the doctor to discuss her laboratory results.
(Tr. 182.) The DNA test from Athena Diagnostics indicated that Plaintiff possessed the
Huntington’s disease DNA mutation and was “predicted to be affected with or
predisposed to developing the clinical symptoms associated with Huntington’s disease.”
(Tr. 173.) Plaintiff's blood work was otherwise normal. (Tr. 176-77, 182.) During the
visit, Plaintiff's husband told the doctor that Plaintiff had been exhibiting symptoms for
more than five years but stubbornly refused to seek medical treatment. (Tr. 182.)
Plaintiff agreed to a neurology consult but did not want to try any medication. (Tr. 183.)
Her main concern was telling her three children about the diagnosis. (Tr. 182.) Her
physical examination was unchanged from her previous visit. (Tr. 183.)

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At the end of August 2011, Plaintiff met with John Puente, M.D., to discuss her
Huntington’s disease diagnosis and treatment of any symptoms. (Tr. 207.) Plaintiff's
mother and brother both died from Huntington’s disease, her mother at the age of 60.
(Tr. 209.) A review of systems indicated Plaintiff had some difficulty with balance and
paralysis. (Tr. 207.) On physical examination, Dr. Puente observed her moving both
hands and her head “a bit” in chorea type movements. (Tr. 207.) She had some
unsteadiness in her gait due to the abnormal movement. (Tr. 207.) Dr. Puente
characterized her gait as “altered, but not clearly ataxic.” (Tr. 207.) Dr. Puente started
Plaintiff on enzymes to better control her chorea movement. (Tr. 207.)
In January 2012, Dr. Puente completed a physical RFC assessment. (Tr. 22228.) Based on her diagnosis of Huntington’s disease, Dr. Puente opined that Plaintiff
could lift and carry less than 10 pounds occasionally, sit for less than 6 hours, stand and
walk for less than 2 hours, and never perform any postural maneuvers during an 8-hour
work day because of her gait unsteadiness and poorly controlled gross movement. (Tr.
223-24.) She was limited in reaching, handling, fingering, and feeling. (Tr. 225.) Dr.
Puente stated that Huntington’s disease was a progressive, deteriorating, irreversible
neurological condition with accompanying cognitive decline. (Tr. 223.) He also noted
that Huntington’s disease was a terminal condition. (Tr. 223.) It was not compatible with
working in later stages. (Tr. 227.)
In May 2012, Plaintiff went to the emergency room after a fall and was admitted
to the hospital for five days. (Tr. 238.) Her ability to walk had declined during the past
month and she had not been walking for the past several days. (Tr. 248.) The doctor
performed brain surgery to remove a blood clot. (Tr. 248.) A treatment note indicates
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that Plaintiff's Huntington chorea had been “problematic for many years, but [Plaintiff]
avoided diagnosis till one year ago.” (Tr. 244.)
On June 4, 2012, Dr. Puente responded to Plaintiff's attorney’s request for an
onset date of Plaintiff's functional limitations. (Tr. 289.) Dr. Puente stated that his “best
guess” would be 2006, based on her husband’s statement to Dr. Saathoff in her 2011
medical records that Plaintiff had been exhibiting symptoms for more than five years.
(Tr. 182, 289.) Dr. Puente stated that Plaintiff had involuntary movements in both arms
and legs that caused gait instability and difficulty with even gross movements such as
sitting. (Tr. 289.) He stated that this had been present for years “starting in at least
2006.” (Tr. 289.) Plaintiff followed-up with Dr. Puente on June 26, 2012. (Tr. 293.) He
stated that Plaintiff's symptoms had “calmed down.” (Tr. 293.) She still had trouble
getting around, but the movement seemed to be adequately suppressed. (Tr. 293.) Her
walk was quite dystonic and she was reliant on her walker. (Tr. 293.)
On February 10, 2012, Plaintiff sent letters to the Appeals Council from two
personal friends, Steven Mason and Janice Temple. (Tr. 156, 158.) Mr. Mason stated
that he has known Ms. Peters for 15 years. (Tr. 157.) He stated that Plaintiff had
previously worked as a motel housekeeper and had been very self-sufficient. (Tr. 157.)
However, Mr. Mason began to notice a gradual deterioration in Plaintiff’s health. (Tr.
157.) At first she exhibited problems with her gait and exaggerated arm movements and
her speech became halted. (Tr. 157.) By 2002 or 2003 she was unable to function in her
position due to increased difficulty in walking and controlling her arm movements and
retired early. (Tr. 157.) In early 2009 she stopped driving due to fears that it was no
longer safe. (Tr. 157.) Ms. Temple's letter similarly noted Plaintiff’s problems with falling
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due to gait problems as well as her inability to cook because of fear that she would
stumble and start a fire. (Tr. 159.)
STANDARD OF REVIEW
In reviewing a decision to deny disability benefits, a district court does not
reweigh evidence or the credibility of witnesses or revisit issues de novo. Rather, the
district court's role under 42 U.S.C. § 405(g) is limited to determining whether
substantial evidence in the record as a whole supports the Commissioner's decision
and, if so, to affirming that decision. Howe v. Astrue, 499 F.3d 835, 839 (8th Cir. 2007).
“Substantial evidence is less than a preponderance, but enough that a
reasonable mind might accept it as adequate to support a decision.” Finch v. Astrue,
547 F.3d 933, 935 (8th Cir. 2008). The Court must consider evidence that both detracts
from, as well as supports, the Commissioner's decision. Carlson v. Astrue, 604 F.3d
589, 592 (8th Cir. 2010). As long as substantial evidence supports the Commissioner's
decision, that decision may not be reversed merely because substantial evidence would
also support a different conclusion or because a district court would decide the case
differently. Frederickson v. Barnhart, 359 F.3d 972, 976 (8th Cir. 2004).
DISCUSSION
1.

ALJ’s Refusal to Order a Consultative Examination
Plaintiff first argues that the ALJ failed to develop the record when he did not

order a consultative examination after the hearing and after Plaintiff’s husband
completed a Supplemental Information Form, dated May 10, 2010. For any claim
decision, the plaintiff bears the burden of establishing that she had a severe impairment,
and the plaintiff bears the responsibility of furnishing medical evidence to show that she
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is disabled. See 20 C.F.R. § 404.1512. Nevertheless, “The ALJ has a duty to fully and
fairly develop the evidentiary record.” Byes v. Astrue, 687 F.3d 913, 915-16 (8th Cir.
2012).

A consultative medical examination is required to fully develop the

administrative record when the evidence as a whole is not sufficient to support a claim
decision. See 20 C.F.R. § 404.1519a(b). The regulations explain that a consultative
medical evaluation is necessary where the claimant’s medical sources cannot provide
sufficient evidence about the impairment. 20 C.F.R. § 416.917.
The ALJ’s decision is not reversible for failing to order a consultative
examination.

Plaintiff argues that “[h]ad the record been properly developed, the

medical evidence would have established that [Plaintiff] was and had been suffering
from Huntington’s Disease from at least 2006.” (Pl. Br., Filing No. 12, at 7.)

It is

presumed that the Plaintiff takes this position because a consultative examination may
have mirrored the opinions stated in Plaintiff’s additional evidence submitted the
Appeals Council. Plaintiff does not argue that her medical sources failed to provide
sufficient evidence of her impairment. Thus, a consultative examination would have
been merely duplicative of the evidence already before the Appeals Council. Such
duplication is unnecessary. Accordingly, the ALJ did not err by refusing to order a
consultative examination.
2.

The New Evidence Does Not Warrant Reversal or Remand
Even considering the new evidence Plaintiff submitted to the Appeals Council,

the ALJ’s decision is supported by substantial evidence.

In a disability insurance

benefits case, the burden is on the claimant to prove that he or she has a disability.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Under the Social Security
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Act, 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) and
1382c(a)(3)(A). Additionally, the claimant will be found to have a disability “only if his
physical or mental impairment or impairments are of such severity that 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 the
national economy.” 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B); see also Bowen v.
Yuckert, 482 U.S. 137, 140 (1987).
The Commissioner has promulgated regulations outlining a five-step process to
guide an ALJ in determining whether an individual is disabled. First, the ALJ must
determine whether the individual is engaged in “substantial gainful activity.” If she is,
then she is not eligible for disability benefits. 20 C.F.R. § 404. 1520(b). If she is not, the
ALJ must consider step two which asks whether the individual has a “severe
impairment” that “significantly limits [the claimant's] physical or mental ability to do basic
work activities.” 20 C.F.R. § 404.1520(c). If the claimant is not found to have a severe
impairment, she is not eligible for disability benefits. If the claimant is found to have a
severe impairment the ALJ proceeds to step three in which he must determine whether
the impairment meets or is equal to one determined by the Commissioner to be
conclusively disabling. If the impairment is specifically listed or is equal to a listed
impairment, the claimant will be found disabled. 20 C.F.R. § 404.1520(d). If the
impairment is not listed or is not the equivalent of a listed impairment, the ALJ moves on
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to step four which asks whether the claimant is capable of doing past relevant work. If
the claimant can still perform past work, she is not disabled. 20 C.F.R. § 404.1520(e). If
the claimant cannot perform past work, the ALJ proceeds to step five in which the ALJ
determines whether the claimant is capable of performing other work in the national
economy. In step five, the ALJ must consider the claimant's “age, education, and past
work experience.” Only if a claimant is found incapable of performing other work in the
national economy will she be found disabled. 20 C.F.R. § 404.1520(f); see also Bowen,
482 U.S. at 140–41 (explaining five-step process).
Plaintiff argues that the ALJ erred in terminating the analysis at step 2, by
concluding that Plaintiff had no severe impairment through the date she was last
insured. (Tr. 15.) In support of her argument, Plaintiff states that Dr. Puente confirmed
that she had Huntington’s Chorea, which meets the listing under 20 C.F.R. pt. 404,
subpt. P, app. 1 § 11.17.

Section 11.17 covers "Degenerative disease not listed

elsewhere, such as Huntington's chorea, Friedreich 's ataxia, and spino-cerebellar
degeneration. With: A. Disorganization of motor function as described in 11.048; . . . ."
Section 11.04 B requires "Significant and persistent disorganization of motor function in
two extremities, resulting in sustained disturbance of gross and dexterous movements,
or gait and station (see 11.00C)." The record demonstrates that Plaintiff did not submit
any medical records to the ALJ, and testified at the administrative hearing that she
could not work because of a bad back. (Tr. 24, 25-26, 35-37.) Plaintiff was tested for
Huntington’s Disease two days after the hearing. (Tr. 184.) Medical records concerning
Plaintiff’s treatment for Huntington’s Disease were developed over the next year. (Tr.
184-298.) These records were before the Appeals Council when it denied review of the
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ALJ’s decision. (Tr. 1.) Further, the Appeals Council’s decision makes it clear that it
considered this new evidence and found that the additional records did not provide a
basis for changing the ALJ’s decision. (Tr. 1-5.) The Court agrees that, even
considering the additional evidence, substantial evidence supports the ALJ’s decision.
Plaintiff has the burden of establishing the existence of a disability on or before
the expiration of her insured status. Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir.
1984). Under Eighth Circuit law, “medical evidence of a claimant's condition subsequent
to the expiration of the claimant's insured status is relevant evidence because it may
bear upon the severity of the claimant's condition before the expiration of his or her
insured status.” Id. (citations omitted). However, a nondisabling condition which later
develops into a disabling condition after the expiration of a claimant's insured status
cannot be the basis for an award of disability benefits under Title II. Thomas v. Sullivan,
928 F.2d 255, 260–61 (8th Cir.1991); Dunlap v. Harris, 649 F.2d 637, 638 (8th
Cir.1981). Accordingly, Plaintiff bears the burden of establishing the existence of her
disability prior to December 31, 2007, the date her insured status expired. (See Pl. Br.,
Filing No. 12 at 11.)
Plaintiff’s declining condition subsequent to the administrative hearing, while
relevant, does not necessarily establish that she was disabled on the date her insured
status expired. Dr. Puente described Huntington’s disease as a progressive,
deteriorating, irreversible neurological condition with accompanying cognitive decline.
(Tr. 223.) Medical records from the year following Plaintiff’s test for Huntington’s show a
rapid decline in Plaintiff's motor function. (Tr. 184-298.) Her physicians’ treatment notes
describe involuntary movements in her arms, legs, and head (Tr. 185-86, 289.)
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Although her gait was not clearly ataxic in late 2011 (Tr. 207), by June 2012 her gait
was “quite dystonic” and she was reliant on her walker (Tr. 293). However, Plaintiff’s
subsequent diagnosis and degeneration does not automatically result in a retroactive
assignment of limitations to the Plaintiff prior to the ALJ’s decision. Instead, the Court
must evaluate whether the ALJ’s decision remains supported by substantial evidence
for the relevant time period.
The Court concludes that even considering the additional evidence, the ALJ’s
decision is supported by substantial evidence. At the administrative hearing, Plaintiff
testified about her daily activities. These activities included cleaning the entire house
every day, doing laundry, spending several hours sitting and watching television,
camping, fishing, and attending weekly car races. (Tr. 31-32, 33-34, 35.) Plaintiff also
testified that she handled her own money, had a checkbook, and paid the bills. (Tr. 38.)
Plaintiff’s ability to perform these activities prior to the hearing supports a finding that
her symptoms were not sufficiently severe. The ALJ was also permitted to discount
Plaintiff’s subjective complaints of pain because she failed to seek medical advice prior
to filing for SSI. Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003) (“An ALJ may
discount a claimant's subjective complaints of pain based on the claimant's failure to
pursue regular medical treatment.”). For the same reasons, the ALJ was permitted to
discount the credibility of the third-party statements of Mr. Mason and Ms. Temple.
At the administrative hearing, a vocational expert testified that a hypothetical
individual with Plaintiff’s abilities at the time of the hearing could return to Plaintiff's past
work as a motel cleaner. (Tr. 40.) The expert testified that when restricted to work
requiring light exertion, i.e., lifting and carrying 20 pounds occasionally and 10 pounds
13

frequently, the individual could still perform the motel cleaner job. (Tr. 40.) The
vocational expert added that such an individual could perform other unskilled, light work,
including the representative positions of laundry worker and cafeteria attendant. (Tr. 4041.) The testimony of the vocational expert at the hearing supports the ALJ’s decision.
The additional evidence Plaintiff submitted to the Appeals Council does not
establish that, as of the date last insured, she suffered “significant and persistent
disorganization of motor function in two extremities, resulting in sustained disturbance of
gross and dexterous movements, or gait and station.” See 20 C.F.R. pt. 404, subpt. P,
app. 1 § 11.17. On July 22, 2011, Dr. Saathoff noted that Plaintiff tested positive for
Huntington’s DNA. (Tr. 182.) He also noted that her husband stated that Plaintiff had
been exhibiting symptoms for over five years, but refused to come to the doctor for
treatment. (Tr. 182.) Dr. Puente provided his “best guess” about Plaintiff’s retroactive
functional limitations by referencing Dr. Saathoff’s notes about her symptoms. (Tr. 289.)
Thus, Dr. Puente’s guess was based on Dr. Saathoff’s notes, and Dr. Saathoff’s notes
were based on Plaintiff’s husband’s statements. The Appeals Council was permitted to
discount this evidence of retroactivity because it was not based on medically acceptable
clinical and laboratory diagnostic techniques, and was inconsistent with other
substantial evidence in the record. Social Security Ruling (SSR) 96-2p; see also Goff v.
Barnhart, 421 F.3d 785, 790-91 (8th Cir. 2005) (stating that “an appropriate finding of
inconsistency with other evidence alone is sufficient to discount the opinion.”). The
decision of the ALJ, and ultimately the Appeals Council, is supported by the
inconsistency between the statements of the husband and Plaintiff’s activities.

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CONCLUSION
For the reasons discussed, the Court concludes that the Commissioner's
decision is supported by substantial evidence on the record as a whole and is affirmed.
Accordingly,
IT IS ORDERED:
1.

The Commissioner’s decision is affirmed;

2.

The appeal is denied; and

3.

Judgment in favor of the Defendant will be entered in a separate
document.

Dated this 3rd day of January, 2014.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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