Quinn v. Berryhill
Filing
21
MEMORANDUM OPINION AND ORDER reversing the decision of the commissioner. Signed by U.S. District Judge Karen E. Schreier on 3/20/18. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ROSE A. QUINN,
4:17-CV-04013-KES
Plaintiff,
vs.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
MEMORANDUM OPINION AND
ORDER REVERSING THE DECISION
OF THE COMMISSIONER
Defendant.
Plaintiff, Rose A. Quinn, seeks review of the decision of the
Commissioner of the Social Security Administration denying her claim for
disability insurance benefits (SSDI) under Title II of the Social Security Act, 42
U.S.C. § 423, and for supplemental security income (SSI) under Title XVI of the
Social Security Act, 42 U.S.C. § 1382. The Commissioner opposes the motion
and urges the court to affirm the denial of benefits. For the following reasons,
the court reverses the decision of the Commissioner.
PROCEDURAL HISTORY
Quinn filed an application for SSDI and SSI on November 12, 2013,
alleging disability since August 1, 2013. AR 180. The Commissioner denied her
claim initially on March 18, 2014, and upon reconsideration on September 19,
2014. AR 109, 116. Quinn then appeared with counsel before Administrative
Law Judge (ALJ) Denzel R. Busick at an administrative hearing on November
20, 2015. See AR 28 (transcript of hearing). The ALJ issued an opinion
affirming the denial of benefits on December 16, 2015. AR 22. The Appeals
Council denied Quinn’s request for review on December 12, 2016. AR 1. Thus,
Quinn’s appeal of the Commissioner’s final decision is properly before the court
under 42 U.S.C. § 405(g).
FACTUAL BACKGROUND
Quinn was born August 10, 1960. AR 33. She was 53 years old at the
alleged disability onset date, and thus 55 years old at the time of her hearing
before the ALJ. Id. Quinn obtained her GED, graduated from a vocational
technical school’s human services technician program, and obtained an
Associate’s degree from Colorado Technical University. Id. She has also
completed two years of college. AR 225. Quinn reported working a number of
jobs since 2000. Specifically, she worked at the Sioux Falls area humane
society until 2005 or 2006 as a cruelty investigator humane officer, she was
the founder and director of the Second Chance Rescue Center until 2011, and
at the time of her hearing, she worked 16 hours a week as a receptionist at
Inner Lights Community Action. AR 33-35. Quinn has also received a rent
reduction as the manager of her trailer park since 2007. AR 35-36.
Quinn’s primary care provider has been Troy VanOverbeke, a Physician’s
Assistant with Sanford. PA VanOverbeke treated Quinn for depression in 2011,
and he has prescribed different amounts of Effexor and Zanax since then. See
AR 337-38. He has also treated Quinn for anxiety. See AR 398-99 (changing
medication dosage on December 2, 2013 visit); AR 576 (discussing side effects
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of medication on March 31, 2014 visit). He managed the care for Quinn’s
ongoing lower back pain, leg weakness, and bilateral foot numbness since
Quinn fell while walking up stairs in July 2013. See AR 391 (noting backward
fall, bilateral foot numbness for prior six months, low back pain on July 22,
2013 visit); AR 600 (noting continued numbness in toes, difficulty walking on
May 30, 2014 visit). PA VanOverbeke also filled out a Definitions of Rating
Terms form for Quinn on October 30, 2015. AR 838-40.
On September 16, 2013, Dr. Assam at Sanford performed an EMG on
Quinn, which measures electrical activity in response to a nerve’s stimulation
of muscle. AR 472-73. Dr. Assam noted mild neuropathy (nerve damage), but
the EMG was negative for evidence of radiculopathy, plexopathy, or myopathy.
AR 475.
Quinn was referred to Dr. Ansari, a neurologist, for lower extremity
paresthesias. AR 292. Dr. Ansari noted that Quinn had a history of anxiety,
depression, tobacco use, and lower back pain. Id. She reported that her lower
extremity numbness and tingling sensation were becoming progressively worse
over the eight months prior to seeing Dr. Ansari on October 8, 2013. Id. Dr.
Ansari diagnosed Quinn with mild peripheral polyneuropathy, but noted her
symptoms were well controlled without medication, and chronic back pain with
leg weakness. AR 296. Following an MRI on her lower back on October 17,
2013, the radiologist at Sanford noted “extensive disk disease and degenerative
change throughout the lumbar spine,” including mild to moderate spinal
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stenosis at the L3-L4 level and severe stenosis at the right L5-S1 neural
foramen. AR 322-23.
On November 20, 2013, Quinn saw Dr. Chris Janssen, a Sanford
Physical Medicine and Rehabilitation specialist, for her low back pain and
bilateral leg pain. AR 494. At this visit, she reported weakness in her legs when
standing for a long period of time and sharp, aching pain. Id. Dr. Janssen
noted Quinn was not a candidate for surgery and recommended five weeks of
physical therapy. AR 496. While Quinn reported the physical therapy appeared
to help at first (AR 513), her pain continued. AR 518. See also AR 457 (physical
therapy notes for lower back pain in December 2013). At her February 3, 2014
visit with Dr. Janssen, she explained her lower back pain was worse with
increased activity and worse with bending and twisting. AR 530. Dr. Janssen
started Quinn on Cymbalta, but she suffered side effects. AR 560. Dr. Janssen
also filled out a Definitions of Rating Terms form on an unknown date. AR 627629.
Quinn continued participating in physical therapy at McCook Therapy
for her low back pain in 2014. AR 609. She also visited Dean Berg, DC, FACO,
a chiropractor at Total Health Chiropractic numerous times in 2013 and 2014.
See AR 570 (diagnosing subluxation/nonallopathic lesion, lumbar region); AR
571 (same); AR 572 (same). Dr. Berg noted that Quinn appeared to respond
favorably to chiropractic treatment. AR 571.
On June 18, 2014, Quinn was seen by Dr. Sanders for her low back
pain. AR 617. Dr. Sanders reviewed her previous MRI and performed an
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epidural steroid injection at Quinn’s L3-L4 level. AR 620. At her July 14, 2014
visit, Quinn reported the injection helped but activity still aggravated her back.
AR 621. Dr. Sanders noted Quinn’s limited range of motion, pain with motion,
but a negative straight leg raise bilateral test. AR 621-22. Quinn received a
second epidural steroid injection. AR 624.
Quinn claims she still suffers from lower back pain, numbness in her
toes, and walking is very difficult. AR 600. There is also evidence that she has
scoliosis. AR 326. Following a June 17, 2015 X-ray on her left elbow, the
radiologist noted some degenerative changes. AR 792. She also had an MRI on
her cervical spine on July 15, 2015, which shows shoulder pain, radiculopathy,
some disk protrusion, but significant spinal stenosis is not present in her neck.
See AR 742 (Sanford radiologist, DO Free, noting impression of disk disease
and degenerative change in cervical spine).
ADMINISTRATIVE HEARING
During the administrative hearing, the ALJ heard testimony from Quinn
and James Miller, a vocational expert. Quinn, represented by counsel at the
hearing, testified about her education and her work experience as a cruelty
investigator humane officer, director of the Second Chance Rescue Center, and
as a part time receptionist. AR 33-35. She testified that while she did some
physical work and lifted kennels with several animals in them while working at
the humane society, she cut back how much weight she lifted when she was
the director of the rescue center. AR 34-35. She does not do heavy lifting at her
current job as a receptionist. AR 35.
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Quinn then testified about her physical problems that make it difficult
for her to continue working. AR 36. Specifically, she discussed her low back
pain, neck problems, anxiety due to her fear that she will fall again, and the
numbness in her toes. AR 36-37. She testified that when she stands to wash
dishes, she has to bend over after ten minutes because the pressure in her
back causes fatigue in her legs. AR 39. Quinn stated that she can only stand
for 10-15 minutes at a time, but she often has to lean against something
during that period of time, and she cannot sit for very long either. Id. She can
only lift and carry 10-15 pounds, she cannot pull 10-15 pounds but she would
“try” to push 10-15 pounds. AR 41.
Quinn testified that she was taking 800 milligrams of Ibuprofen a day,
Ambien to fall asleep, Effexor for anxiety and stress, a triglyceride for
cholesterol, water pills, and she used a prescription cream on her back. AR 42.
In order to alleviate her back and neck pain, Quinn explained that she moves
around a lot and tries to see her chiropractor to relieve the pressure. AR 43. At
the time of her hearing, Quinn lived in a house with her teenage son. Id. In a
typical day, she cleans and cooks, but she needs her son’s help with the yard
work. AR 44.
Prior to Quinn’s administrative hearing, Miller submitted a Work History
report, which listed manager mobile home park, manager animal shelter, and
dog catcher as Quinn’s past jobs. AR 286. He noted that Quinn acquired the
skills of managing the mobile home park, collecting rent, showing facilities, and
directing maintenance staff from her job as manager of the mobile home park.
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Id. He listed no acquired skills from her position as manager of the animal
shelter and noted her acquired skills of protecting animals, capturing strays,
and caring for animals from her position as dog catcher. Id.
In response to the hypothetical question posed by the ALJ, Miller testified
that someone with Quinn’s impairments could not perform her past work as a
manager of an animal shelter “as she did it[,]” but could perform this work as it
is described in the Dictionary of Occupational Titles (DOT). AR 49. Miller also
testified that someone with Quinn’s impairments could perform the manager of
a mobile home park position “as she did it,” but could not do her past work as
a dog rescuer. AR 50.
The ALJ then posed a hypothetical to Miller about a person whose pain
moderately interferes with concentration, persistence, or pace and who is
limited to routine tasks of three to four steps. AR 50-51. In response, Miller
testified that such a person could not perform Quinn’s past work at a light
level, but noted to the ALJ: “I think you are coming up with more of an
unskilled level.” AR 51. Miller then indicated that the skills Quinn acquired in
her past work would be transferable to some office clerical types of jobs. AR 51.
He identified positions such as general office clerk, file clerk, or storage facility
clerk as available in the national economy. AR 51-52. When accounting for
concentration limitations, Miller testified that a person could only perform
unskilled positions, such as an inspector hand packager, which is available in
the national economy. AR 52.
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ALJ DECISION
Employing the five-step analysis associated with an application for social
security benefits, the ALJ denied Quinn’s claim on December 16, 2015. AR 22.
At step one, the ALJ found that Quinn has not engaged in substantial gainful
activity since August 1, 2013, the alleged onset date. AR 15. At step two, the
ALJ determined Quinn has the following severe impairments: degenerative disc
disease, peripheral neuropathy, anxiety, and affective disorder. Id.
At step three, the ALJ concluded Quinn does not have an impairment, or
combination of impairments, that meets or medically equals the severity
required under 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. At step four, the
ALJ found that Quinn cannot perform her past relevant work, but concluded
that she has the residual functional capacity (RFC) to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b). 1 At step five, the ALJ found
that Quinn has acquired work skills from past relevant work that are
transferable to other occupations with jobs available in the national economy.
AR 21. Thus, the ALJ concluded that Quinn is not disabled under the Social
Security Act.
The ALJ found Quinn “can lift and carry 20 pounds on occasion and 10
pounds or less frequently. She can sit at [sic] total of 6 hours as well as stand
and walk, combined, a total of 6 hours in an 8-hour workday. She has no
limits in reaching. She can climb stairs occasionally, but must avoid climbing
ladders and scaffolds. She can frequently, not constantly, balance, stoop,
kneel, crouch and crawl.” AR 17. The ALJ further found Quinn “has limitations
in concentration, persistence and pace . . . which limit her to work involving
only simple, routine and repetitive tasks of about three to four steps.” Id.
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STANDARD OF REVIEW
The court must uphold the ALJ’s decision if it is supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g) (“The findings
of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”); Teague v. Astrue, 638 F.3d
611, 614 (8th Cir. 2011). “ ‘Substantial evidence is less than a preponderance,
but is enough that a reasonable mind would find it adequate to support the
conclusion.’ ” Teague, 638 F.3d at 614 (quoting Finch v. Astrue, 547 F.3d 933,
935 (8th Cir. 2008)). When reviewing the record, “the court ‘must consider both
evidence that supports and evidence that detracts from the Commissioner’s
decision.’ ” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting
Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)). If the Commissioner’s
decision is supported by substantial evidence in the record as a whole, the
court may not reverse it merely because substantial evidence also exists in the
record that would support a contrary position or because the court would have
determined the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022
(8th Cir. 2002) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
The court also reviews the Commissioner’s decision to determine if an
error of law has been committed, which may be a procedural error, the use of
an erroneous legal standard, or an incorrect application of the law. Collins v.
Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are
reviewed de novo with deference accorded to the Commissioner’s construction
9
of the Social Security Act. Id. (citing Juszczyk v. Astrue, 542 F.3d 626, 633 (8th
Cir. 2008)).
THE FIVE STEP PROCEDURE FOR DISABILITY DETERMINATIONS
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); 42 U.S.C. § 1382c(3)(A). “An individual shall be
determined to be under 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). An ALJ must apply a five-step procedure
when determining if an applicant is disabled. Smith v. Shalala, 987 F.2d 1371,
1373 (8th Cir. 1993). The steps are as follows:
Step One: Determine whether the applicant is presently engaged in
substantial gainful activity. 20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b).
Step Two: Determine whether the applicant has an impairment or a
combination of impairments that are severe. 20 C.F.R. § 404.1520(c); 20 C.F.R.
§ 416.920(c).
Step Three: Determine whether any of the severe impairments identified
in Step Two match the listing in Appendix 1. 20 C.F.R. § 404.1520(d); 20
C.F.R. § 416.920(d).
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Step Four: Considering the applicant’s RFC, determine whether the
applicant can perform any past relevant work. 20 C.F.R. § 404.1520(e); 20
C.F.R. § 416.920(e).
Step Five: Determine whether any substantial gainful activity exists in
the national economy that the applicant can perform. 20 C.F.R. § 404.1520(f);
20 C.F.R. § 416.920(f).
DISCUSSION
Quinn urges the court to reverse the ALJ’s decision for the following
reasons: (1) the ALJ did not properly identify Quinn’s past relevant work; (2)
the Commissioner failed to meet her burden at step 5 to identify jobs, based on
substantial evidence, that Quinn could perform; (3) the ALJ’s mental RFC
finding is not supported by substantial evidence; (4) the ALJ failed to identify
all of Quinn’s severe impairments; and (5) the ALJ erred in evaluating the
opinion of Quinn’s treating physician’s assistant. Docket 14. The court will
address these arguments in the order of the five-step procedure outlined above.
Quinn also requests the court to remand the case with instructions for the
Commissioner to award benefits. Id. at 39.
I.
Step Two
In step two, the ALJ must determine whether the claimant has an
impairment or combination of impairments that are severe. 20 C.F.R. §
404.1520(c); 20 C.F.R. § 416.920(c). In other words, the ALJ must determine if
the claimant’s impairment(s) “significantly limits [her] physical or mental ability
to do basic work activities[.]” 20 C.F.R. § 1520(c).
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The ALJ found that Quinn’s severe impairments are degenerative disc
disease, peripheral neuropathy, anxiety and affective disorder. AR 15. Quinn
argues that the ALJ never discussed whether Quinn’s scoliosis is a medically
determinable impairment, and thus a severe impairment, even though the ALJ
had noted Quinn allegedly suffered from scoliosis. Docket 14 at 32.
Additionally, Quinn argues the ALJ failed to mention Quinn’s weight or
consider whether she suffered from obesity as a severe impairment, and failed
to discuss whether Quinn’s neck pain was a medically determinable, and thus
possibly severe, impairment. Id. at 33.
In response, the Commissioner first states that “the United States
Supreme Court held an ALJ’s failure to find a particular impairment severe at
step two is not reversible error” if the ALJ finds some other impairment is
severe. Docket 18 at 4 (citing Bowen v. Yuckert, 482 U.S. 137, 156 (1987)
(O’Connor, J., concurring)). As Quinn noted in her reply, Justice O’Connor’s
concurring opinion in Bowen is not a holding of the Court. In fact, the Eighth
Circuit has indicated that an ALJ’s failure to identify a severe impairment,
when that impairment is diagnosed and supported by sufficient medical
evidence, is not harmless error. Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir.
2007); see Lund v. Colvin, 2014 WL 1153508, at *26 (D. Minn. Mar. 21, 2014)
(discussing district court cases within the Eighth Circuit that have interpreted
Nicola to mean any error at step two requires reversal, while other district
courts in the circuit have declined to read such a per se rule from Nicola). And
while the claimant has the burden to demonstrate that an impairment is
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severe, this is not a difficult burden to meet. Caviness v. Massanari, 250 F.3d
603, 605 (8th Cir. 2001). An impairment is severe unless “it amounts only to a
slight abnormality that would not significantly limit the claimant’s physical or
mental ability to do basic work activities.” Kirby v. Astrue, 500 F.3d 705, 707
(8th Cir. 2007). Any doubt as to whether the claimant has met her burden is
resolved in favor of the claimant. Dewald v. Astrue, 590 F. Supp. 2d 1184,
1199 (D.S.D. 2008) (citing SSR 85-28).
The Commissioner maintains that because Quinn worked in the past
while she suffered from scoliosis and obesity, her conditions did not preclude
her from work. Docket 18 at 5 (citing Gowell v. Apfel, 242 F.3d 793, 796 (8th
Cir. 2001)). But the Gowell court discussed the claimant’s continued work
despite her alleged conditions in the context of her credibility regarding her
subjective complaints of pain. Gowell, 242 F.3d at 796. The Eighth Circuit
analysis in Gowell had nothing to do with an ALJ’s step two assessment.
Furthermore, this argument does not address Quinn’s point: that is, the ALJ
never determined whether Quinn’s scoliosis, obesity, and neck condition were
medically determinable impairments at step two. And it is medically
determinable impairments, not just impairments in general, that later guide an
ALJ’s RFC analysis and decision. See SSR 96-8p.
Obesity, if diagnosed by a treating source or consultative examiner or
identified in medical records, is a medically determinable impairment under the
regulations. SSR 02-1p. Quinn argues the ALJ did not address Quinn’s weight
even though her medical records consistently show high weight. Further,
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because Quinn’s scoliosis and neck impairment were not identified as
medically determinable impairments, Quinn argues that limitations arising
from these conditions should have been included in the ALJ’s RFC analysis at
step four. Docket 14 at 32-34.
The court agrees with Quinn. Here, the ALJ did not mention Quinn’s
obesity, and he did not make a finding as to whether Quinn’s scoliosis or neck
impairment—which he noted Quinn testified about—were medically
determinable impairments that were either severe or not severe. There is
evidence in the record to support such diagnoses, so they should have been
addressed in the step two analysis. Because medically determinable
impairments are so important to the RFC analysis at step four, the court finds
that the ALJ’s insufficient findings regarding Quinn’s medically determinable
severe impairments at step two require remand for further development.
II.
Step Four
In order to complete step four, the Commissioner must determine the
claimant’s RFC, which is the most the claimant can do despite the claimant’s
mental and physical limitations. Brown v. Barnhart, 390 F.3d 535, 538-39 (8th
Cir. 2004) (citing 20 C.F.R. § 404.1545(a)(1)). Then, the ALJ must determine
whether the claimant’s impairments, taking the claimant’s RFC into
consideration, preclude the performance of past relevant work. 20 C.F.R. §
404.1520(f). Three of Quinn’s arguments challenging the ALJ’s denial of
benefits relate to step four of the analysis: the ALJ’s mental RFC determination,
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the overall weight given to Quinn’s treating provider, and Quinn’s past relevant
work.
A.
Mental RFC
An ALJ determines a claimant’s RFC based on all relevant evidence in
the record, including medical records, observations of treating physicians, and
the claimant’s own description of her limitations. Lacroix v. Barnhart, 465 F.3d
881, 887 (8th Cir. 2006). The ALJ’s RFC finding “must be supported by medical
evidence that addresses the claimant’s ability to function in the workplace.”
Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003).
Here, the ALJ determined Quinn’s severe mental impairments included
affective disorder and anxiety disorder. AR 15. Quinn argues that the ALJ’s
subsequent findings on Quinn’s limitations in activities of daily living, social
functioning, and concentration, persistence, and pace based on those mental
impairments were erroneous. Docket 14 at 29-31. In other words, while the
ALJ properly recognized Quinn’s severe mental impairments, the ALJ
improperly determined the resulting limitations on Quinn’s RFC and their
severity. Id.
Quinn points to the ALJ’s following findings: she had mild limitations in
activities of daily living, mild difficulty in social functioning, and moderate
difficulty in concentration, persistence, and pace. Docket 14 at 29 (citing AR
16). This portion of the ALJ’s analysis, however, is related to step three. The
ALJ specifically noted that such limitations “are not a RFC assessment” and
“[t]he mental RFC assessment used at steps 4 and 5 . . . requires a more
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detailed assessment . . . .” AR 17. The ALJ then conducted a further RFC
analysis under step four. See AR 17-21. As the Commissioner maintains
(Docket 18 at 13), an ALJ is not required to include step two and step three
findings regarding limitations in step four’s RFC limitations. See Lacroix v.
Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006) (rejecting claimant’s argument
that step two’s mental impairment limitations must be included in ALJ’s step
four RFC analysis).
Quinn also argues that the ALJ failed to note Quinn’s history of
depression and anxiety. Docket 14 at 30. In determining Quinn’s mental RFC,
the ALJ noted he was “cognizant of the substantial overlap in symptomology
between different mental impairments . . . . Accordingly, her psychological
symptoms and their effect on her functioning have received consideration
together, instead of separately, regardless of the diagnostic label attached.” AR
19. The ALJ then cited to several medical records in support of his mental RFC
finding, some of which noted Quinn’s medical history of depression and
anxiety. AR 19-20 (citing AR 295, AR 531).
The court is aware of the medical records establishing other mental
issues as cited by Quinn (Docket 14 at 30), but it is not this court’s job to
reweigh the evidence regarding the ALJ’s RFC assessment. And while an ALJ
may formulate common-sense judgments about the RFC based on medical
findings, an ALJ cannot act as a medical expert. Dixon v. Barnhart, 324 F.3d
997, 1002 (8th Cir. 2003). The ALJ’s statement that he considered
psychological symptoms together, instead of separately, when symptoms of
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different mental impairments overlap appears to be more of a common-sense
judgment rather than improper medical findings by the ALJ. And this court has
not found any authority declaring such consideration to be error. Thus, the
court finds the ALJ’s mental RFC assessment is supported by substantial
evidence in the record.
B.
Weight Given to Treating Provider
Quinn contends that the ALJ erred in giving the opinion of PA
VanOverbeke, Quinn’s treating provider, limited weight. Docket 14 at 34-39.
“Medical opinions from treating sources about the nature and severity of an
individual’s impairment(s) are entitled to special significance and may be
entitled to controlling weight.” SSR 96-8p, 1996 WL 374184, at *7 (July 2,
1996); see also 20 C.F.R. § 404.1527(c)(2). The ALJ must give the treating
source’s medical opinion controlling weight if the opinion “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the case record[.]” Id.
Additionally, SSR 96-2p provides that:
Adjudicators must remember that a finding that a treating source
medical opinion is not well-supported by medically accepted clinical
and laboratory diagnostic techniques or is inconsistent with the
other substantial evidence in the case record means only that the
opinion is not entitled to “controlling weight,” not that the opinion
should be rejected. Treating source medical opinions are still
entitled to deference and must be weighed using all of the factors
provided in 20 C.F.R. §§ 404.1527 and 416.927. In many cases, a
treating source’s medical opinion will be entitled to the greatest
weight and should be adopted, even if it does not meet the test for
controlling weight.
SSR 96-2p, 1996 WL 374188, at *4 (July 2, 1996).
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At the time of the ALJ’s decision, a physician’s assistant (PA) was not
considered an acceptable medical source. SSR 06-03p, 2006 WL 2329939, at
*1 (Aug. 9, 2006). See also 20 C.F.R. § 404.1527. PA’s were instead classified
as “other sources.” Id.
The adjudicator is to apply the same factors to the opinions of
nonacceptable medical sources as applied to acceptable medical sources. See
20 C.F.R. § 404.1527(f). The factors include the examining relationship, the
treatment relationship, length of the treatment relationship and frequency of
examination, the nature and extent of the treatment relationship,
supportability, consistency, specialization, and a catchall other factors that the
claimant brings to the attention of the adjudicator. 20 C.F.R. § 404.1527(c).
After applying any applicable factors, which depend on the facts of each
particular case,
an opinion from a medical source who is not an acceptable medical
source or from a nonmedical source may outweigh the medical
opinion of an acceptable medical source, including the medical
opinion of a treating source. For example, it may be appropriate to
give more weight to the opinion of a medical source who is not an
acceptable medical source if he or she has seen the individual more
often than the treating source, has provided better supporting
evidence and a better explanation for the opinion, and the opinion
is more consistent with the evidence as a whole.
20 C.F.R. § 404.1527(f)(1).
Quinn asserts the ALJ erred by giving PA VanOverbeke’s opinion limited
weight. Docket 14 at 36. PA VanOverbeke was the treating provider of Quinn,
and he has the most substantial evidence in the record establishing a treating
relationship with Quinn over the years. But PA VanOverbeke was not
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considered an acceptable medical source at the time of the ALJ’s decision.
Despite his classification as an “other source” under the regulations, Quinn
argues that the ALJ improperly weighed PA VanOverbeke’s opinion because no
other provider examined Quinn and opined on her limitations after her neck
and elbow impairments were diagnosed. Docket 14 at 37-38.
An ALJ must use “at least some” medical evidence to support his RFC
determination. Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010). But the
Eighth Circuit has long held “that the results of a one-time medical evaluation
do not constitute substantial evidence on which the ALJ can permissibly base
his decision.” Cox v. Barnhart, 345 F.3d 606, 610 (8th Cir. 2003).
Because the court has already determined remand is appropriate to
reevaluate and document whether Quinn had additional medically
determinable, and possibly severe, impairments, the ALJ’s assessment at step
four may change, including what weight to give to treating providers. The court
is cognizant that it cannot reweigh the evidence presented to the ALJ. Baldwin
v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003). But on remand, the ALJ should
provide additional analysis on whether this is an appropriate case to give more
weight to PA VanOverbeke as Quinn’s main treating source after applying the
factors outlined in 20 C.F.R. § 404.1527. See also Shontos v. Barnhart, 328
F.3d 418, 426-27 (8th Cir. 2003) (reaffirming that “other” sources, such as
physicians’ assistants, generally are given more weight than non-treating, nonexamining sources).
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C.
Past Relevant Work
Past relevant work includes substantial gainful activity that the claimant
performed within the past 15 years, and that lasted long enough for the
claimant to learn to perform it. 20 C.F.R. § 404.1560(b)(1). An earnings test is
often used to determine whether past work is substantial gainful activity. 20
C.F.R. § 404.1574(a). At the time of Quinn’s hearing and subsequent decision
by the ALJ, a claimant must have earned $1,090 per month on average from a
job in order for that job to be considered substantial gainful activity. See
https://www.ssa.gov/oact/cola/sga.html, last accessed Mar. 12, 2018. Quinn
received a $250-$275 rent reduction per month for her work as a manager of
her mobile home park, but the ALJ listed this position as one of Quinn’s past
relevant jobs. AR 21.
Quinn argues the ALJ erred in including her position as the mobile park
home manager in his past relevant work assessment. Docket 14 at 19. In
response, the Commissioner concedes Quinn’s position at the mobile home
park does not rise to the substantial gainful activity earnings level, but
maintains the ALJ’s statement was harmless error. Docket 18 at 15-26.
Notably, while the ALJ included Quinn’s position as mobile home park
manager in Quinn’s list of past relevant work, the ALJ still concluded that
Quinn is unable to perform any past relevant work. AR 21. The court finds that
listing Quinn’s position as a mobile home park manager as past relevant work,
standing alone, is not reversible error because the ALJ concluded Quinn could
not perform any of her past relevant work. See Byes v. Astrue, 687 F.3d 913,
20
917 (8th Cir. 2012) (“To show an error was not harmless, [the claimant] must
provide some indication that the ALJ would have decided differently if the error
had not occurred.”). Quinn has not established that removing Quinn’s position
as a mobile home park manager from the list of her past relevant work would
have changed the ALJ’s decision at step four. But Quinn argues that the ALJ’s
error was prejudicial when the ALJ identified the mobile home park manager
position as a past relevant job from which Quinn acquired transferable skills in
step five. Docket 14 at 20. The court will consider this argument in the context
of the analysis at step five below.
III.
Step Five
If the ALJ finds that the claimant cannot perform her past work, the
burden shifts to the Commissioner at step five to show that the claimant can
perform other work that exists in the national economy. Jones v. Astrue, 619
F.3d 963, 971 (8th Cir. 2010) (quotations omitted). The ALJ’s decision that
work, which the claimant can perform in light of her RFC, exists in significant
numbers in the national economy must be supported by substantial evidence.
Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004). “Testimony from a
vocational expert constitutes substantial evidence only when based on a
properly phrased hypothetical question.” Id. at 784 (citing Cruze v. Chater, 85
F.3d 1320, 1323 (8th Cir. 1996)). The hypothetical posed to the vocational
expert (VE) “must include all impairments that are supported by substantial
evidence in the record as a whole.” Id. (citing Pickney v. Chater, 96 F.3d 294,
296 (8th Cir. 1996)).
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Quinn makes three arguments in contending that the ALJ erred in his
finding that there are a significant number of jobs in the national economy that
Quinn can perform. Docket 14 at 22-28.
A.
Transferable Skills
The ALJ found that Quinn acquired skills from her past work as a mobile
home park manager and animal shelter manager that are transferable to the
occupations of a general office clerk and file clerk. AR 21-22. Quinn argues this
was improper because the ALJ ignored the VE’s testimony and there is no
evidence in the record to support the finding that Quinn acquired “general
clerical skills.” Docket 14 at 22-24.
Transferability of skills is an issue only when an individual’s
impairment(s), though severe, does not meet or equal the criteria in
the Listing of Impairments in Appendix 1 of the regulations but does
prevent the performance of past relevant work (PRW), and that work
has been determined to be skilled or semiskilled.
SSR 82-41, 1982 WL 31389, at *1 (Jan. 1, 1982).
At the hearing, the ALJ posed a second hypothetical to the VE limiting an
individual to work involving only simple, routine tasks of three to four steps
and asked if the individual could perform Quinn’s past work at a light level. AR
50-51. The VE responded, “judge, I think you are coming up with more of an
unskilled level.” AR 51. Quinn argues that the ALJ never addressed this
testimony and still made his decision about Quinn’s transferable skills despite
the fact that transferability of skills only applies to a claimant’s skilled or semiskilled past work. Docket 14 at 22. The Commissioner does not address this
argument.
22
“A skill is knowledge of a work activity which requires the exercise of
significant judgment that goes beyond the carrying out of simple job duties and
is acquired through performance of an occupation which is above the unskilled
level . . . .” SSR 82-41. “Skills are not gained by doing unskilled jobs . . . .” Id.
When the issue of skills and their transferability must be decided, the
adjudicator or ALJ is required to make certain findings of fact and include
them in the written decision. Findings should be supported with appropriate
documentation. SSR 82-41.
This issue should be clarified on remand to the ALJ for two reasons.
First, the record is unclear as to whether the ALJ’s transferability decision
relied on the VE’s responses to this second hypothetical when the ALJ never
corrected the hypothetical after the VE said the ALJ was describing an
unskilled level. The ALJ also did not mention this possible discrepancy in the
hypothetical in his decision. This was not just harmless error, either. The
burden at step five is on the Commissioner to show that Quinn could perform
other jobs in the national economy, and transferability is one way to establish
that finding. And this court is hesitant to affirm a decision relying on the
transferability of skills, when transferability of skills may be improperly based
on an inaccurate hypothetical. The ALJ relied on the VE in his step five
analysis, but a VE’s testimony is only substantial evidence when the VE is
given a properly phrased hypothetical. Tucker, 363 F.3d at 784.
Second, the VE testified that, based in part on the premise that Quinn
acquired transferable skills from her position as the mobile park home
23
manager, there are some “office clerical types of jobs” that would be available
for Quinn. AR 51. See also AR 286 (VE’s Work History report listing mobile
home park manager as a former job where she acquired skills of “manages
mobile home park, colelcts [sic] rents, shows, [sic] facilities, directs
maintenance staff”). Relying on the VE’s testimony, the ALJ concluded that
Quinn acquired “general clerical skills” that are transferable to other jobs. AR
21-22. And the mobile home park position is the only basis in the record to
establish these skills identified by the ALJ because the only other acquired
skills listed by the VE in his Work History report related to capturing strays
and caring for animals. AR 286.
On remand, the ALJ should provide more documentation to support his
findings on transferability if the issue still arises. See SSR 82-41. Additionally,
both the hypothetical posed to the VE and the analysis should not include any
skills Quinn potentially acquired from her position as the mobile home park
manager because a claimant gains transferable skills only from past relevant
work. See id.
B.
Grid Rule
To determine if a claimant can adjust to other work, the ALJ may also
consider a claimant’s RFC, age, education, and work experience consistent
with the Medical-Vocational Guidelines listed in 20 C.F.R. Part 404, Subpart P
and Appendix 2. The Commissioner has the burden to establish that the
“claimant’s characteristics identically match those contained in the
Guidelines.” Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998). When
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individuals approaching advanced age (age 50-54) “have no past work
experience or can no longer perform vocationally relevant past work and have
no transferable skills, a finding of disability ordinarily obtains.” 20 C.F.R. Part
404, Subpart P, App. 2, 201.00(g).
Under the medical-vocational guidelines, there are three relevant age
categories: younger person (under age 50), a person closely approaching
advanced age (age 50-54), and a person of advanced age (age 55 or older). 20
C.F.R. § 404.1563. In this case, the ALJ found Quinn not disabled after
applying the grid in Medical-Vocational Rule 202.15. AR 22. This grid rule
applies to individuals with an RFC to perform light work who are closely
approaching advanced age (age 50-54) with a high school education or more,
previous work experience in skilled or semi-skilled jobs with transferable skills,
and leads to a finding of not disabled. 20 C.F.R. Part 404, Subpart P., App. 2.
Quinn argues that the ALJ applied the wrong grid rule and should have
instead applied grid rule 202.06 for individuals of advanced age because Quinn
was 55 years old at the time of the ALJ’s decision. Docket 14 at 25. The
Commissioner, in response, argues that the proper grid rule is 202.07, but it
was proper to apply Rule 202.15 up until Quinn turned 55. Docket 18 at 19.
Because the applicable grid rule decision depends in large part on whether
Quinn acquired transferrable skills from her past relevant work and the issue
of transferability will be addressed further on remand, the court will not
address this argument. But Quinn’s age categorization is vital to this
determination so the ALJ is instructed to consider whether Quinn falls within
25
the borderline age situation or if a different grid rule should apply to Quinn on
her alleged disability onset date than to the date she turned 55. See Phillips v.
Astrue, 671 F.3d 699, 706-07 (8th Cir. 2012) (concluding that the ALJ, while
not required to make detailed findings in borderline age situations, is
“indisputably” required to consider whether the higher age category should
apply to a claimant in order for a reviewing court to determine if substantial
evidence exists in the record to affirm an ALJ’s decision).
C.
Conflict between VE’s Testimony and DOT
Vocation evidence should be consistent with the Dictionary of
Occupational Titles. SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). An
ALJ must ask about any possible conflict between the VE’s evidence and
information provided in the DOT about a job’s requirements. Id. at *4. Here, the
ALJ noted: “Per SSR 00-4p, the undersigned determined that the [VE’s]
testimony is consistent with information in the [DOT].” AR 22. Quinn argues
that the ALJ did not ask the VE if his testimony was consistent with the DOT,
so the ALJ’s “self determination of consistency” is erroneous. Docket 14 at 26.
The Eighth Circuit has found that an ALJ’s failure to ask about
consistency is harmless error, but only if there is no actual conflict between the
vocational evidence and the DOT requirements for particular jobs identified by
the VE. Renfrow v. Astrue, 496 F.3d 918, 920-21 (8th Cir. 2007). Thus, Quinn
argues there are actual conflicts here because the ALJ’s RFC finding and the
hypothetical posed to the VE limited Quinn to work “involving only simple,
routine and repetitive tasks of about three to four steps.” Docket 14 at 26
26
(citing AR 17, AR 50-51). The VE then identified general office clerk, file clerk,
and the unskilled job of storage facility clerk as jobs Quinn could perform,
which are all defined in the DOT to require a Reasoning Level 3. Quinn thus
contends jobs with a reasoning level higher than 1, such as these jobs
identified by the VE, require more than simple, routine tasks of three to four
steps. Id. at 27 (citing DOT at 174-75).
Here, the ALJ did not ask the VE whether his testimony conflicted with
the DOT, and if it did, whether there was a reasonable explanation for the
conflict. Because the VE’s testimony regarding the positions he listed is based
in part on the premise that Quinn acquired transferable skills from her
position as mobile park home manager, the court finds it is not appropriate to
address this argument at this time. The record does not reflect whether the ALJ
or the VE recognized a possible conflict here. See Kemp ex rel. Kemp v. Colvin,
743 F.3d 630, 633 (8th Cir. 2014). The appropriate remedy is to have the ALJ
address any possible conflict on remand after the VE testifies in response to a
proper hypothetical and does not include improper skills in the transferability
analysis.
CONCLUSION AND ORDER
The court finds that the ALJ erred in failing to address whether Quinn’s
scoliosis, obesity, and neck condition were medically determinable, and
possibly severe, impairments. The court further finds that the ALJ’s analysis at
step five, based on a possibly flawed hypothetical to the VE and an improper
27
inclusion of Quinn’s position as mobile home park manager, contains errors.
Thus,
IT IS ORDERED that the decision of the Commissioner is REVERSED
and REMANDED for further review.
DATED this 20th day of March, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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