Hetrick v. Colvin
MEMORANDUM OPINION - A thorough review of the record leads the Court to findthat substantial evidence supports the decision of the ALJ. In addition, the Court finds no errors of law. For the foregoing reasons the Court will affirm the decision of the Social Security Administration denying the plaintiff's Title II application. A separate order will be entered herein in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (LAC)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
KIM MARLENE HETRICK,
CAROLYN W. COLVIN, Acting
Commissioner of the Social
This matter is before the Court for judicial review of
a final decision of defendant, Carolyn W. Colvin, Acting
Commissioner of the Social Security Administration
(“Commissioner” or “defendant”) pursuant to 42 U.S.C. § 405(g) of
the Social Security Act (the “Act”).1
The matter has been fully
briefed by the parties in accordance with the Court’s September
2, 2015 order (Filing No. 12).2
See Filing Nos. 14 and 15.
After review of the record, the parties’ briefs, and applicable
law, the Court finds as follows.
Certain provisions of the Act have been amended by the
Bipartisan Budget Act of 2015, Pub. L. 114-74, 29 Stat. 584
(2015). However, the specific sections and subsections cited
within this memorandum opinion are unaffected by the changes
The plaintiff entitled her brief (Filing No. 14)
“Plaintiff’s Opening Brief in Support of Summary Judgment on a
Social Security Appeal.” The Court will construe plaintiff’s
brief as a brief in support of plaintiff’s complaint.
BACKGROUND AND PROCEDURAL HISTORY
On April 20, 2012, the plaintiff, Kim Marlene Hetrick
(“plaintiff”), sought a period of disability and disability
insurance benefits by filing a Title II application in accordance
with 42 U.S.C. §§ 401-434 (Filing No. 14 at 1).
disability due to “back pain, bilateral carpal tunnel syndrome,
bilateral tennis elbow, and problems sleeping due to pain.”
Plaintiff also claims to suffer from chronic obstructive
pulmonary disease (“COPD”).
(Id. at 2).
disability began on April 1, 2011.
Plaintiff alleges her
(Id. at 1).
On June 8, 2012, plaintiff’s initial application for a
period of disability and disability insurance benefits was denied
(Filing No. 10-3 at 2-10).
Her application was denied again on
reconsideration on August 1, 2012.
(Id. at 11-20).
On March 10,
2014, after an administrative hearing, plaintiff’s application
was once again denied by an administrative law judge (“ALJ”).
(Filing No. 10-2 at 12-23).
Although the plaintiff sought review
of the ALJ’s denial, the Appeals Council denied her request for
any additional review.
(Id. at 2-6).
became “the final agency decision.”
Thus, the ALJ’s decision
(Filing No. 14 at 2; see
also Filing No. 10-2 at 2-6 (explaining ALJ’s “decision is the
final decision of the Commissioner” and explaining the process
for filing a civil action in federal court)).
On June 25, 2015, plaintiff filed a civil action in
this Court seeking review of the Commissioner’s denial of her
Title II application (Filing No. 1).
Plaintiff asks the Court to
find “that [she] is entitled to Social Security Disability
Insurance Benefits . . . or [to] [r]emand the case for a further
(Id. at 2).
Plaintiff contends the ALJ’s decision to
deny her benefits was erroneous based on four issues.
No. 14 (arguing the ALJ: (1) failed “to find [that] [p]laintiff’s
COPD [is] a severe impairment;” (2) that the residual functional
capacity determination is “not supported by substantial
evidence;” (3) that the ALJ’s “credibility determination is not
supported by substantial evidence;” and (4) that the “Step 5
determination is not supported by substantial evidence.”).
defendant counters by arguing that plaintiff “had a fair hearing
and full administrative consideration . . . [and] [s]ubstantial
evidence on the record as a whole supports the Commissioner’s
(Filing No. 15 at 19).
District courts have authority to review the Social
Security Administration’s final decision denying an applicant’s
Title II request for Social Security disability insurance
See 42 U.S.C. § 405(g).
The statute provides courts
guidance as to the decisions courts can render and the deference
that ought to be given upon review:
The court shall have power to
enter, upon the pleadings and
transcript of the record, a
judgment affirming, modifying, or
reversing the decision of the
Commissioner of Social Security,
with or without remanding the cause
for a rehearing. The findings of
the Commissioner of Social Security
as to any fact, if supported by
substantial evidence, shall be
conclusive . . . .
Courts within the Eighth Circuit “defer heavily to the
findings and conclusions of the Social Security Administration.”
Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) (citing Howard
v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001)).
“decision must be affirmed ‘if it is supported by substantial
evidence on the record as a whole.’”
Barrows v. Colvin, No. C
13-4087-MWB, 2015 WL 1510159, at *7 (N.D. Iowa, March 31, 2015)
(quoting Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006))
(internal citations omitted).
“Substantial evidence is less than
a preponderance, but enough that a reasonable mind might accept
it as adequate to support a decision.”
Juszczyk v. Astrue, 542
F.3d 626, 631 (8th Cir. 2008) (quoting Kirby v. Astrue, 500 F.3d
705, 707 (8th Cir. 2007)).
“If substantial evidence supports the
ALJ’s decision, [a court] will not reverse the decision merely
because substantial evidence would have also supported a contrary
outcome, or because [the court] would have decided differently.”
Barrows, 2015 WL 1510159, at *7 (quoting Wildman v. Astrue, 596
F.3d 959, 964 (8th Cir. 2010)) (internal citations omitted).
“[A] reviewing court should not consider a claim de novo, nor
abdicate its function to carefully analyze the entire record.”
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000).
The Court finds that the ALJ’s decision denying
plaintiff’s Title II application should be affirmed.
assigns four errors as issues before the Court.
Those issues are
A. Plaintiff’s COPD as a Severe Impairment
In order for a claimant to receive disability benefits
under 42 U.S.C. §§ 401 et seq., the claimant must show that he or
she is disabled as defined in the Act.
See 42 U.S.C.
The Social Security Administration uses a five-
step process for determining whether or not a claimant is
See 20 C.F.R. § 404.1520.
Step two of the analysis
requires a determination as to the severity of the claimant’s
impairment or impairments.
See 20 C.F.R. § 404.1520(c).
determined that plaintiff’s COPD was not a severe impairment
(Filing No. 10-2 at 18).
Plaintiff claims this determination was
erroneous because the “ALJ offered no further analysis or
explanation regarding [p]laintiff’s COPD or its effects either on
her ability to function or engage in competitive employment.”
(Filing No. 14 at 9-10).
The Court disagrees.
The ALJ considered:
plaintiff’s testimony regarding her breathing issues (Filing No.
10-2 at 19); (2) plaintiff’s testimony regarding her attempts to
quit smoking (Id. at 19-20); (3) the plaintiff’s use of a nonprescribed inhaler to help her airway (Id. at 20); and (4) the
plaintiff’s medical records (see, e.g., id. at 20-21).
finds that the ALJ’s determination that the plaintiff’s COPD was
not a severe impairment is supported by substantial evidence.
Accordingly, the ALJ’s determination that plaintiff’s COPD was
not a severe impairment is affirmed.
B. The Residual Function Capacity Determination
A claimant’s residual function capacity is the most an
individual can do in a work setting despite limitations.
C.F.R. § 404.1545(a)(1).
The ALJ’s decision stated:
the undersigned finds that the
claimant has the residual function
capacity to occasionally lift and
carry up to 20 pounds and 10 pounds
frequently and push and pull as
much . . . can walk, sit and stand
up to 6 hours . . . frequently
handle and finger bilaterally . . .
frequently climb ramps and stairs
but can never climb ladders or
scaffolds . . . can occasionally
stoop, kneel, or crouch . . . [but]
never crawl . . . [and] is limited
to hearing and understanding simple
(Filing No. 10-2 at 18-19).
Plaintiff claims the ALJ’s residual function capacity
determination is not supported by substantial evidence because,
the ALJ “fail[ed] to afford controlling weight” to Dr. Hoelting,
the plaintiff’s “treating physician.”
(Filing No. 14 at 12).
Plaintiff also argues the ALJ’s determination “fails to
adequately account for [p]laintiff’s severe and non-severe
impairments, particularly her progressive hearing loss and COPD.”
(Id. at 14).
Defendant counters that “‘[i]t is the claimant’s
burden, and not the Social Security Commissioner’s burden, to
prove the claimant’s [residual function capacity].’” (Filing No.
15 at 11-12) (quoting Baldwin v. Barnhart, 349 F.3d 549, 556 (8th
Cir. 2003)) (internal citations omitted).
Defendant also argues
“Dr. Hoelting’s opinions [are] not entitled to treating physician
analysis . . . [because plaintiff] has not shown that she had an
ongoing treating relationship with him.”
(Id. at 12 (citing 20
The Court finds that the ALJ’s determination regarding
plaintiff’s residual function capacity should be affirmed.
ALJ’s determination is supported by substantial evidence.
Court is satisfied that the ALJ carefully considered “the entire
record” including “all symptoms and the extent to which [those]
symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence” in accordance with
20 C.F.R. § 404.1529 and SSRs 96-4p and 96-7p.
(Filing No. 10-2
The ALJ “also considered opinion evidence” in
accordance with the statutory requirements.
See id. at 19; see
also Juszczyk, 542 F.3d at 632 (indicating “ALJ’s are not obliged
to defer to treating physician’s medical opinions unless they are
‘well supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with the other
substantial evidence in the record.’”)) (quoting Ellis v.
Barnhart, 392 F.3d 988, 995 (8th Cir. 2005)).
ALJ’s residual function capacity determination is affirmed.
C. The Credibility Determination
“The credibility of a claimant’s subjective testimony
is primarily for the ALJ to decide, not the courts.”
349 F.3d at 558 (citing Benskin v. Bowen, 830 F.2d 878, 882 (8th
“Subjective complaints may be discounted if there
are inconsistencies in the evidence as a whole.”
“‘will not disturb the decision of an ALJ, who considers, but for
good cause expressly discredits, a claimant’s complaints
. . . .’”
Baker v. Barnhart, 457 F.3d 882, 894 (8th Cir. 2006)
(quoting Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)).
The ALJ stated:
“the claimant’s statements concerning
the intensity, persistence and limiting effects of [her] symptoms
are not entirely credible.”
(Filing No. 10-2 at 20).
based this conclusion on the scant medical evidence available and
indicated that the plaintiff’s allegations appeared to be
See id. at 19-20.
The Court’s thorough review of
the record as a whole leads the Court to affirm the credibility
decision of the ALJ.
The available medical and other evidence is
substantial enough to support the ALJ’s credibility assessment
regarding plaintiff’s statements and testimony with respect to
Accordingly, the ALJ’s determination as to
plaintiff’s credibility is affirmed.
D. The Step Five Determination
The fifth and final step in the Commissioner’s decision
regarding a claimant’s disability is to consider the claimant’s
“residual function capacity . . . age . . . education, and work
experience” to see if the claimant “can make an adjustment to
If the adjustment can be made, the claimant will
not be considered disabled.
See 20 C.F.R. 404.1520(a)(4)(v).
The ALJ concluded “the claimant is capable of making a successful
adjustment to other work that exists in significant numbers in
the national economy.
appropriate . . . .”
A finding of ‘not disabled’ is therefore
(Filing No. 10-2 at 22-23).
The plaintiff alleges the ALJ’s step five determination
was erroneous because “the ALJ’s errors in determining
[p]laintiff’s [residual function capacity] and credibility render
the Step 5 determination inherently unsupported by substantial
(Filing No. 14 at 17).
Plaintiff also claims the
ALJ’s determination was made in error due to the ALJ’s reliance
on a vocational expert’s testimony “elicited in response to an
incomplete hypothetical question” unsupported by substantial
The Court has already concluded that the ALJ’s
decisions pertaining to the plaintiff’s residual function
capacity and credibility ought to be affirmed; therefore, the
Court will forego any further discussion with respect to those
With respect to the ALJ’s reliance on the
vocational expert’s testimony and the hypothetical questions
posited by the ALJ, the Court finds no error as the hypothetical
questions were “‘supported by substantial evidence in the record
and accepted as true by the ALJ.’”
(Id.) (quoting Guilliams v.
Barnhart, 393 F.3d 798, 804 (8th Cir. 2005)) (internal citations
Therefore, because the Court affirms the residual
function capacity and credibility determinations of the ALJ, and
because the ALJ’s hypothetical questions were not improper, the
Court will not disturb the defendant’s step five determination.
Accordingly, the ALJ’s step five determination is affirmed.
A thorough review of the record leads the Court to find
that substantial evidence supports the decision of the ALJ.
addition, the Court finds no errors of law.
For the foregoing
reasons the Court will affirm the decision of the Social Security
Administration denying the plaintiff’s Title II application.
separate order will be entered herein in accordance with this
DATED this 14th day of January, 2016.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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