Duncan v. Colvin
Filing
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OPINION AND ORDER ON SOCIAL SECURITY APPEAL denying 11 motion for reversal and remand to commissioner and affirming the final administrative decision to the effect that the claimant is not eligible for benefits under the Social Security Act. Signed by U.S. District Judge Charles B. Kornmann on 03/31/2015. (SAT)
FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
CINDY LYNN DUNCAN,
MAR 3 1 20f5
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1:14-CV-01001-CBK
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
OPINION AND ORDER
ON SOCIAL SECURITY APPEAL
Defendant.
Plaintiff brought this action pursuant to§ 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g), to obtain judicial review of defendant's final decision denying plaintiffs claim for
disability insurance benefits. I have conducted a de novo review of the record. I find that the
Commissioner's decision is supported by substantial evidence on the record as a whole.
BACKGROUND
Plaintiff Cindy Duncan was born in 1957 and has a history of poor physical health. In
2000, she was comatose and hospitalized. She has had a lumbar laminectomy and discectomy.
Unfortunately, her medical care for quite some time was poor, at best. She routinely went to
"cash clinics" where the treatments were abysmal. Several of her treatment records are oflittle
use, as they contain little more than weight or blood pressure. One of her health care providers
had patients sign a waiver acknowledging that the provider did not have medical malpractice
insurance. Her later medical history is a bit more complete, including a visit to Doctor
Villamagna in St. Petersburg, Florida, where he wrote that "klonopin has been helpful for 12
years ... (it) allows her to work and perform duties as telemarketer (sic), no dizziness, no
transient involuntary movements." Much of the plaintiffs medical history seems to contradict
itself, but more recent examinations indicate fewer problems with the defendant's health.
The plaintiff filed a Title II application for a period of disability and disability insurance
benefits on July 8, 20 I 0. The plaintiff also filed a Title XVI application for supplemental
security income on July 8, 2010. In both applications, the plaintiff alleged disability beginning
on May I, 2009. Both claims were initially denied in November, 2010, and again in December,
2010. Plaintiff then filed a written request for a hearing, which was subsequently held on May
17, 2012, in Florida. The Administrative Law Judge ("ALJ") that conducted the hearing found
that the plaintiff had not been under a disability (within the meaning of the Social Security Act)
from May, 1, 2009 through the present. The plaintiff timely filed this present action on
January 21, 2014, after exhausting all administrative remedies. Plaintiff contends the ALJ erred
by applying an incorrect standard of law to support his findings and that the decision reached is
not supported by substantial evidence. This Court has jurisdiction pursuant to 42 U.S.C. §405(g)
and 42 U.S.C. § 1383(c)(3).
DECISION
An individual is considered to be disabled if, inter alia, he 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 12 months." 42 U.S.C. § 423(d)(l)(A). An
individual shall be determined to be disabled "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).
"To be eligible for disability insurance benefits, a claimant has the burden of establishing
the existence of a disability under the Act." Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001 ). Judicial review of the Commissioner's decision that claimant has failed to establish by a
preponderance of the evidence that she is not disabled within the meaning of the Social Security
Act is limited to determining whether the Commissioner's decision is supported by substantial
evidence in the record as a whole. Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013).
"Substantial evidence is less than a preponderance, but enough that a reasonable mind might
accept as adequate to support a conclusion." Kamann v. Colvin, 721 F.3d at 950 (quoting Kelley
v. Callahan, 133 F.3d 583, 587 (8th Cir.1998)). "We consider both evidence that detracts from
the ALJ's decision, as well as evidence that supports it, but we will not reverse simply because
some evidence supports a conclusion other than that reached by the ALJ." McDade v. Astrue,
720 F.3d 994, 998 (8th Cir. 2013) (internal citations omitted). "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." Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
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The ALJ used the familiar five-step sequential evaluation to determine disability:
In step one, the ALJ decides whether the claimant is currently engaging in
substantial gainful activity; if the claimant is working, [she] is not eligible for
disability insurance benefits. In step two, the ALJ determines whether the
claimant is suffering from a severe impairment. If the claimant is not suffering a
severe impairment, [she] is not eligible for disability insurance benefits. At the
third step, the ALJ evaluates whether the claimant's impairment meets or equals
one of the impairments listed in Appendix 1 of the regulations (the "listings"). If
the claimant's impairment meets or equals one of the listed impairments, [she] is
entitled to benefits; if not, the ALJ proceeds to step four. At step four, the ALJ
determines whether the claimant retains the "residual functional capacity" (RFC)
to perform his or her past relevant work. If the claimant remains able to perform
that past relevant work, [she] is not entitled to disability insurance benefits. If
[she] is not capable of performing past relevant work, the ALJ proceeds to step
five and considers whether there exist work opportunities in the national economy
that the claimant can perform given his or her medical impairments, age,
education, past work experience, and RFC. If the Commissioner demonstrates
that such work exists, the claimant is not entitled to disability insurance benefits.
McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (internal C.F.R. citations omitted).
The ALJ used the five-step sequential evaluation from McCoy. He found that the
plaintiff had not engaged in substantial gainful activity since May 1, 2009, which was the alleged
onset date of the plaintiffs disability. He found that the claimant had the following severe
impairments: degenerative disc disease, obesity, and tremors, stating that "they are more than
slight abnormalities that have more than a minimal effect on the claimant's ability to perform
basic work activities." The ALJ determined that those impairments, either standing alone or
combined, did not meet the severity requirements of 20 CFR Part 404, Subpart P, Appendix 1
(404.1520(d), 4041526, 416.920(d), 416.925 and 416.926). As such, the ALJ found that the
plaintiff had the residual functional capacity to perform light work, noting" ... claimant [is] able
to lift 20 pounds occasionally and 10 pounds frequently, stand or walk for six hours per day, and
sit for six hours per day. However, the claimant is unable to climb ladders, ropes, or scaffolds.
The claimant is able to balance, stoop, kneel, crouch, crawl, and climb ramps or stairs frequently.
The claimant must avoid vibration, hazardous machinery, and heights." He found the plaintiff
capable of returning to her past work as a telemarketer. Due to his finding in step four, the ALJ
was not required to proceed to step five. Plaintiff claims the ALJ committed reversible error by
(1) failing to order a psychological consultative examination, (2) failing to find a mental
impairment "severe," (3) failing to assess credibility in accordance with legal criteria, and (4)
failing to properly conduct a "residual functional capacity" assessment.
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1. Failure to Order a Psychological Consultative Examination
Plaintiff contends that the ALJ erred by failing to develop neuropsychological or
psychological evidence, primarily by failing to order a psychological consultative examination
("CE"). The record shows that plaintiffs prior counsel made both a written and an oral request
for a psychological CE, and those requests were denied after a hearing, based on an examination
performed by Doctor Rabinowitz and a telephonic conversation the plaintiff had with a
Disability Determination Services employee. Defendant argues that the ALJ properly developed
the record regarding the necessity of ordering a psychological CE.
It is reversible error for an ALJ to not order a consultative examination when such an
evaluation is necessary for the ALJ to make an informed decision. Dozier v. Heckler, 754 F.2d
274 (8th Cir. 1985). The regulations provide that if a claimant's medical sources cannot give
sufficient medical evidence about her impairment for the ALJ to determine whether the claimant
is disabled, a consultative examination may be provided at government expense. 20 CFR
§416.917.
Plaintiff was given a consultative examination by Dr. Rabinowitz. This was not a
psychological CE, but a general one. The doctor determined that the plaintiffs speech and
communication were clear, she was oriented, her memory intact, and behavior during the
examination was appropriate. Based in part on this examination, the ALJ determined that further
evaluation was unnecessary. The other reason for the ALJ's decision to not order a
psychological CE was a telephone conversation with a Disability Determination Services
employee, who talked with the plaintiff. During the conversation, the plaintiff reported that she
lived alone, showered, brushed her hair and teeth, read the newspaper, prepared meals and had
no difficulty using the oven, remembered to take her medication, and was able to attend to
normal household responsibilities.
Plaintiff argues that the failure to order a psychological CE violates both case and
statutory law. Plaintiff cites 20 CFR § 404.1503(e), which holds:
An initial determination by a State agency ... that you are not disabled ... in any
case where there is evidence which indicates the existence of a mental
impairment, will be made only after every reasonable effort has been made to
ensure that a qualified psychiatrist or psychologist has completed the medical
portion of the case review and any applicable residual functional capacity
assessment.
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Agency interpretation of statutory authority warrants deference under Skidmore v. Swift &
Co, 323 U.S. 134 (1944). Skidmore deference holds that an agency's interpretation of the statute
it is charged with implementing may "merit some deference whatever its form, given the
'specialized experience and broader investigations and information' available to the agency, and
given the value of uniformity in its administrative and judicial understandings of what a national
law requires." United States v. Mead Corp., 533 U.S. 218 (2001) (quoting Skidmore, 323 U.S. at
139). The law requires that the ALJ may order a psychological consultative examination if the
claimant's medical sources cannot provide sufficient medical evidence. In this case, the ALJ
determined that the medical sources did provide sufficient medical evidence. This Court finds
that determination to be proper. The ALJ based his decision to deny a psychological consultative
examination on the consultative examination performed by Dr. Rabinowitz, the telephone
conversation with the DDS employee, and what the ALJ witnessed during the hearing held with
the plaintiff. As such, the Commissioner's decision is supported by substantial evidence, and the
denial for a psychological consultative examination is not reversible error.
2. Failure to Identify a Severe Mental Impairment
Plaintiff next contends the ALJ erred by failing to identify a "severe" impairment at step
two of the sequential evaluation. An impairment is "non-severe" if it does not "significantly
limit" the claimant's ability to perform basic work activities. 20 C.F.R. §§ 404.1521 (a),
416.921(a). "Basic work activities" are defined as the abilities and aptitudes necessary to do
most jobs, including ( 1) physical functions such as walking, sitting, lifting, or pulling; (2)
capacities for seeing, hearing and speaking; (3) understanding, carrying out, and remembering
simple instructions; (4) use of judgment; (5) responding appropriately to supervision, coworkers, and usual work situations; and (6) dealing with changes in a routine work setting. 20
C.F.R. § 416.921(a).
The ALJ found that the plaintiffs degenerative disc disease, obesity, and tremors
qualified as "severe" impairments because they were more than slight abnormalities and had
more than a minimal effect on the plaintiffs ability to perform basic work activities. The
regulations require only that a claimant establish at least one severe impairment to avoid a denial
of benefits at step two of the five-step sequential evaluation. 20 C.F.R. §§404.1520(a)(4)(ii),
416.920(a)(4)(ii). The ALJ did so and proceeded to step three. The purpose of step two is to not
conclusively evaluate the severity of each individual impairment, but assist in the administrative
process by weeding out individuals who cannot possibly meet the statutory definition of
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disability. Bowen v. Yuckert, 482 U.S. 137 (1987). The ALJ found at least several ailments
"severe" and proceeded to step three. The plaintiffs argument focuses on the credibility of the
ALJ's finding, but that is not a reversible error at this step. The credibility assessment will be
discussed below.
3. Failure to Asses Credibility in Accordance to Legal Criteria
Plaintiff contends that the ALJ failed to assess the credibility of the plaintiffs ailments in
accordance with legal criteria and the substantial evidence standard. The ALJ found that the
plaintiff was credible as to the existence of her symptoms but found that she was not credible
regarding the severity of them because they were not supported by the medical evidence of
record.
In evaluating subjective complaints, the ALJ must consider objective medical evidence, any
evidence relating to a claimant's daily activities, duration, frequency and intensity of pain,
dosage and effectiveness of medication; precipitating and aggravating factors, and functional
restrictions. Polaski v. Heckler. 739 F.2d 1320, 1322 (8th Cir. 1984). Subjective complaints
may be discounted if there are inconsistencies in the evidence as a whole. Id. The credibility of
a claimant's subjective testimony is primarily for the ALJ to decide, not the courts. Benskin v.
Bowen, 830 F.2d 878, 882 (8th Cir. 1987). In making his finding, an ALJ is not required to
explicitly discuss all five factors. Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004).
The ALJ in this case relied heavily on medical evidence. His reliance was proper in light of
the fact that he also considered statements from the plaintiff as to her daily activities, the fact that
she could drive a car, and attended her doctor appointments. The medical evidence showed that
her symptoms were not always present, and when they were present they were controlled with
medication. Moreover, the medical evidence from more recent examinations was consistent.
This Court's job is not to find whether substantial evidence exists to reverse the ALJ, but rather,
whether substantial evidence supports the ALJ's decision. Vossen v. Astrue, 612 F.3d 1011,
1015 (8th Cir. 2010). There is substantial evidence to support the ALJ's decision, and, therefore,
there is not reversible error.
4. Whether the RFC Failed to Comply with Legal Criteria
The plaintiff contends the ALJ erred in determining her residual functional capacity. A
claimant's residual functional capacity ("RFC") is what she can still do despite her limitations.
20 C.F.R. §§ 404.1545(a), 416.945(a). An ALJ assesses the claimant's RFC based on all the
relevant record evidence. Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002). The 8th
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Circuit has held that the RFC is a medical question and some medical evidence must support the
determination of the RFC. Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003).
The ALJ ultimately determined that the plaintiff retained the RFC to perform a reduced range
oflight work. The plaintiff could lift twenty pounds occasionally and ten pounds frequently;
could stand or walk for six hours and sit for six hours in a workday; and could frequently
balance, stoop, kneel, crouch, crawl, and climb ramps or stairs. The plaintiff could not climb
ladders, ropes, scaffolds, and needed to avoid vibration, hazardous machinery, and heights. The
ALJ based his decision on the medical evidence of record and opinion evidence. The ALJ
determined that the plaintiff could perform her past relevant work as a telemarketer. The
evidence supports the ALJ's decision in properly determining the plaintiffs RFC. There was no
reversible error.
CONCLUSION
I find that the Commissioner's decision is supported by substantial evidence on the record as
a whole. Accordingly,
IT IS ORDERED:
1) The plaintiffs motion (Doc. 11) for Reversal and Remand to Commissioner is denied.
2) The final administrative decision to the effect that the claimant is not eligible for benefits
under the Social Security Act is affirmed.
DATED this 31st day of March, 2015.
B~l3.~CHARLESB.KORNMANN
United States District Judge
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