Jenkinson, Jenny v. Astrue, Michael
Filing
20
ORDER denying 11 Motion for Summary Judgment by Plaintiff Jenny Jenkinson; denying request for remand to Commissioner of Social Security. Signed by District Judge Barbara B. Crabb on 12/20/2013. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JENNY BETH JENKINSON,
OPINION AND ORDER
Plaintiff,
13-cv-76-bbc
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This is an action for judicial review of an adverse decision of the Commissioner of
Social Security brought pursuant to 42 U.S.C. § 405(g). An administrative law judge heard
the matter and concluded that plaintiff Jenny Beth Jenkinson has the severe impairments of
fibromyalgia, depression and post traumatic stress disorder, but is not disabled from
performing some of the work she has done in the past as well as other jobs existing in the
national economy.
Plaintiff argues that the commissioner’s decision is wrong in two major
respects. First, the administrative law judge’s questioning of the vocational expert was
flawed because he used the term “limited but satisfactory ability” to describe plaintiff’s
moderate limitations in such things as maintaining attention and concentration or
completing a normal workday or workweek without interruption, but did not explain what
he meant by that term. Second, the Social Security Appeals Council erred in not considering
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a fibromyalgia medical source statement and a mental work capacity report completed by
plaintiff’s physician on March 29, 2012 and received by the agency in May 2012, six months
after the administrative law judge issued his decision. Plaintiff seeks a remand of the case
the commissioner under sentence six of 42 U.S.C. § 405(g) to consider the new evidence.
I conclude that plaintiff has failed to show that either of her challenges to the
commissioner’s decision requires a remand. As to the first one, the administrative law judge
gave an adequate explanation for his use of the term “limited but satisfactory ability” in
determining plaintiff’s residual functional capacity. As to plaintiff’s second challenge, she
has failed to show either that good cause existed for her counsel’s failure to submit the
information from her treating physician or that the information was new and material.
The following facts are drawn from the administrative record (AR).
RECORD FACTS
Plaintiff Jenny Beth Jenkinson was born in May 1984 and was 25 on September 10,
2009, when she filed her application for disability benefits.
She did not engage in
substantial gainful activity after she applied for benefits on September 10, 2009, although
between September 2010 to October 2011 she had worked for a temporary service as a
certified nursing assistant intermittently as needed. AR 31. In her application, she listed
fibromyalgia as her reason for seeking benefits, AR 177, but her medical records show that
she saw doctors frequently for complaints of other ailments as well, including polycystic
ovarian syndrome, attention deficit hyperactivity disorder, depression, obesity and migraine
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headaches.
At her December 5, 2011 hearing before the administrative law judge, plaintiff
testified that she was not employed at the time and had not been employed since October
25 of that year, when she worked as a certified nursing assistant on an as needed basis. AR
50. She described her fibromyalgia pain as being either throbbing or sharp and stabbing,
depending on the location and the weather. AR 51-52. She walked for exercise, but only
about three blocks at a time, and was able to do only a few chores around the house. AR 5556. She said she could not play outside with her children, AR 57, could not go grocery
shopping by herself, AR 58, and found that neither yoga nor pilates helped her, AR 59-60.
Plaintiff characterized her former work as a certified nursing assistant as being
independent, filling in for other nurses who could not travel. AR 62. In that job, she sat
down while she was taking people’s blood pressure and doing paperwork, then stood to
measure height and weight and take body measurements, but the work was for only four
hours a day. AR 63-64. The other half of the job (which she said took eight hours)
consisted of giving results to the people who had been tested. AR 63. She found the job too
stressful so she quit after 13 months. Id. Before that she had worked in a sedentary position
at Lands’ End for two months but left it because she found sitting for eight hours too
difficult. AR 63-64. In earlier jobs, she had worked for Taco Bell, Kohl’s and Copps grocery.
AR 64.
Plaintiff told the administrative law judge that she was not taking any medications
at the time but that in the past she had taken Lyrica for her fibromyalgia, Adderall for her
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ADHD, Vicodin for pain and Cebrex for her depression. AR 65-66. She also said she used
an inhaler for athletic-induced asthma, AR 66, and that she smoked about half a pack of
cigarettes a day but did not drink. Id. She added that her depression affected her ability to
form social relationships and was probably attributable to her fibromyalgia. AR 67.
At plaintiff’s hearing, the administrative law judge assessed plaintiff’s past work as
including light, unskilled work in the form of cashier and fast food worker, AR 72, and
medium, semi-skilled work as a certified nursing assistant, AR 72-73, along with clothing
stocker, which was heavy, semi-skilled work, AR 73, and catalogue sales order clerk, which
was sedentary, semi-skilled work. Id. He posed an extended hypothetical question to the
vocational expert, asking whether plaintiff’s past work as fast food worker, order clerk and
cashier could be performed by an individual of plaintiff’s age, with the same education and
work history, having the physical limitations of light work, with no climbing, crawling or
kneeling and only occasional climbing of ramps or stairs, stooping, bending or crouching,
and who had limited but satisfactory ability to deal with the public, interact with supervisors,
maintain attention and concentration, understand, remember and carry out detailed
instructions and complete a normal workday and work week without interruption from
psychologically based symptoms or unreasonable rest periods. AR 74. The expert testified
that such an individual could perform that work. In addition, the individual could handle
work as a parking lot attendant, ticket taker and machine tender, as well as a number of jobs
at the sedentary level, such as order clerk or credit checker. AR 74-75. Upon questioning
by plaintiff’s counsel, the expert testified that a person who could work only two to three
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days a week and only on a part-time basis would be unable to perform any of the jobs he had
identified. AR 77-78. The administrative law judge adopted the vocational expert’s finding
that a person with plaintiff’s ability and limitations could perform her past relevant work as
a fast food worker, order clerk or cashier, AR 38, as well as other occupations requiring light
exertional levels.
In his written decision, the administrative law judge found that none of plaintiff’s
physical impairments alone or in combination met or medically equaled a medical listing in
20 C.F.R. Part 404, Subpart P, App. 1. AR 32. In assessing whether plaintiff’s mental
impairments met the “B criteria” of the listings for affective disorders (Listing 12.04) or for
anxiety-related disorders (Listing 12.06), he found that plaintiff did not have marked
restrictions of activities of daily living, maintaining social functioning or maintaining
concentration, persistence and pace and she had no episodes of decompensation. AR 33.
(The term “B criteria” refers to four impairments that affect the determination whether a
person is disabled for social security purposes. To be found disabled, a claimant must have
one of the A criteria, that is, a demonstrated loss of specific cognitive abilities or affective
changes and the medically documented persistence of at least one” of a number of problems,
such as perceptual or thinking disturbances resulting in hallucinations or delusions, or a loss
of 15 I.Q. points, 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 12.01(A), plus at least two of
the four B criteria, one of which is “marked difficulties in maintaining concentration,
persistence and pace. Id. at (B).”) The administrative law judge found that plaintiff did have
mild restrictions in activities of daily living, mild to moderate difficulties in social
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functioning and moderate difficulties with regard to concentration, persistence and pace.
Id.
In assessing plaintiff’s residual functional capacity, the administrative law judge found
that plaintiff had a limited but satisfactory ability to relate to coworkers, deal with the
public, interact with supervisors, maintain attention and concentration and understand,
remember and carry out detailed instructions, as well as to complete a normal workday or
workweek without interruptions from psychologically based symptoms or unreasonable rest
periods. AR 34. In making this finding, he observed that when plaintiff was taking her
prescribed medication, she did well. In 2004, her treating doctor, Dr. Jared Harter, found
plaintiff to be alert and oriented, appropriately dressed and groomed, with a euthymic mood
and full range of affect. Her speech was normal in rate and tone and her thought processes
were coherent. AR 35 (citing Harter progress note, AR 280). However, when she stopped
taking the medication, as she did in 2007, her condition deteriorated significantly. Her
doctor recommended resumption of the medication and she “experienced significant
improvement.” Id. In March 2008, she was doing well psychiatrically, sleeping well and
attempting to go back to work. A year later, she was still doing well. Id. Fifteen months
later, she told a consulting psychologist, Dr. Richard Hurlbut, that she had friends and “hung
out” with them often, went shopping, played with her children, ran errands, was involved
in Cub Scouts and played Frisbee. Id. (citing Hurlbut rep., AR 393-97).
As for plaintiff’s fibromyalgia, the administrative law judge noted that plaintiff had
seen a physician, Dr. Todd Rave, in December 2009 and that Rave had found normal,
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symmetrical strength in her upper and lower extremities and symmetric deep tendon reflexes
in her “biceps, triceps, brachioradialis, patellar and Achilles.” AR 36 (citing Rave rep., AR
359). Her gait and station were “relatively normal but a bit antalgic.” Id. Dr. Mazin Ellias
saw plaintiff for a consultation on February 2, 2010 and classified her fibromyalgia as in the
borderline range. AR 36 (citing Ellias rep., AR 377).
The administrative law judge found that plaintiff had medically determinable
impairments that could cause the symptoms she had described, but he found that her
statements about the intensity, persistence and limiting effects of the symptoms were not
credible to the extent they were inconsistent with the residual functional capacity he had
assessed earlier in his decision. His opinion rested on Dr. Ellias’s determination that
plaintiff’s fibromyalgia was only borderline, her “consistently benign” physical examination
results, AR 37, and plaintiff’s own activity report, as well as her statements to Dr. Hurlbut.
He also took into consideration the report of agency physician Robert Callear, who
determined that plaintiff could do light work with additional postural and environmental
limitations. AR 38 (citing Callear rep., AR 399-406).
When it came to plaintiff’s alleged mental limitations caused by her depression and
attention deficit hyperactivity disorder, the administrative law judge placed little weight on
those limitations because plaintiff had not been compliant with the medication regimen
prescribed by her doctors and because her use of marijuana limited the range of treatment
options. Id. He noted that when plaintiff was compliant, she had the mental capacity for
unskilled work, with moderate limitations on her ability to understand, remember and carry
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out detailed instructions, maintain attention and concentration, work in proximity to others
and complete a normal workday or workweek without interruption. AR 38 (citing Edelman
Psychiatric Review, AR 417). He concluded that she could perform her past relevant work
as fast food worker, cashier and order clerk, as well as other jobs requiring light or sedentary
exertion. AR 39.
The administrative law judge submitted his decision on December 30, 2011.
Sometime thereafter, plaintiff retained new counsel, replacing the lawyer who had
represented him through the hearing. Counsel filed a request for review of the hearing
decision and on May 9, 2012, submitted both a Fibromyalgia Medical Source Document and
a Mental Work Capacity form prepared by Dr. Alfred Neuhoff of the Aspirus Clinic on
March 29, 2012. Dr. Neuhoff said he had treated plaintiff for about ten years, seeing her
every one to three months for fibromyalgia, mood disorder, attention deficit hyperactivity
disorder, migraines, asthma and other ailments. AR 548. It was his opinion that emotional
factors contributed to the severity of plaintiff’s symptoms and functional limitations. AR
548.
His assessment of plaintiff’s ability to work was much less positive than the
administrative law judge’s. He assessed plaintiff’s fibromyalgia pain as severe and constant,
AR 549, and believed that she could not sit for more than 30 minutes without having to
stand up and she could not stand for more than 30 minutes. Id. In total, she could sit and
stand for about four hours. She would need four 20-minute unscheduled breaks each day,
during which she would have to lie down, AR 550, and she would be absent from work more
than four days each month. AR 551. Neuhoff thought plaintiff would be precluded from
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performing work for 15% of the day or more when it came to maintaining concentration and
attention, being punctual and maintaining regular attendance and completing a normal
workday or work week without interruption from psychologically based symptoms, as well
as getting along with coworkers and accepting instructions from supervisors. AR 554-55.
The Social Security Appeals Council did not take the newly submitted evidence into
consideration. Instead, it denied plaintiff’s request for review without comment, leaving the
administrative law judge’s decision the final decision of the commissioner. AR 1.
OPINION
A. “Limited but Satisfactory Ability”
Plaintiff contends that the administrative law judge erred in using the term, “limited
but satisfactory ability” when he described her mental functioning to the vocational expert
at her hearing. This, she says, was improper because he had found that she had moderate
limitations of concentration, persistence and pace when he was considering whether she met
the B criteria for mental limitations and he should have used this term with the vocational
expert.
The administrative law judge explained that he used the term “moderate limitations
of concentration, persistence” when considering whether plaintiff met the B criteria. The
limitations listed in the B criteria are not tied directly to residual functional capacity but are
used to rate the severity of mental impairments in steps 2 and 3 of the disability assessment.
When it came to determining the assessment of plaintiff’s residual functional capacity, he
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performed a more detailed assessment: he itemized various functions contained in the broad
categories of the B criteria. In doing this he found plaintiff credible when she said she had
the symptoms of which she complained but less credible when she said that the symptoms
would prevent her from relating satisfactorily with co-workers, dealing with the public,
interacting with supervisors, maintaining attention and concentration and understanding,
remembering and carrying out detailed instructions. He reviewed the record evidence
showing how much plaintiff’s outlook and ability to function improved when she was
compliant with the medication regimen prescribed by her doctors. He placed weight on Dr.
Hurlbut’s report of plaintiff’s socializing, her ability to take care of her house, shop for
groceries and play outside with her children, as well as her involvement in Cub Scouts. AR
35. The administrative law judge did not err in deciding that although plaintiff had some
areas in which she was limited by some mental and emotional problems, she had the ability
to perform satisfactorily in the jobs identified by the vocational expert when she took her
medication. (Nothing in the record suggests that adverse side effects were a reason for
plaintiff’s failure to take her medication, although there were times when she stopped
because she was pregnant or wanted to be.)
The hypothetical questions the administrative law judge put to the vocational expert
were adequate to convey plaintiff’s abilities and limitations and his explanation supports his
use of the term in this particular case. The vocational expert expressed no difficulty in
understanding what the administrative law judge meant when he used the term “limited but
satisfactory abilities” in referring to plaintiff’s ability to perform light and sedentary jobs.
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I conclude that plaintiff cannot prevail on her first claim.
(Plaintiff devoted a few pages in both his initial brief and his reply to what he said
was the administrative law judge’s failure to explain why he thought plaintiff should not have
any strict production quotas. Because I can find nothing in the record that shows that
production quotas were ever an issue in this case, I will ignore the issue.)
B. Report of Dr. Alfred Neuhoff
To obtain a remand requiring the Appeals Council to review late-filed evidence, a
plaintiff must show both that there is “new evidence that is material and that there is good
cause for the failure to incorporate such evidence into the record in a prior proceeding.”
Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997); see also Schmidt v. Barnhart, 395
F.3d 737, 741-42 (7th Cir. 2005); 42 U.S.C. § 405(g). The burden is on the plaintiff to
show that he or she can meet each of the three criteria: the material must be new, that is,
it must not be cumulative of what is already in the record; it must be material, that is, it
must be relevant to the claimant’s condition during the time period for which benefits were
sought, probative and likely to change the outcome of the case; and the proponent must
show good cause for the failure to submit the material in time for it to be incorporated into
the record. Carolyn A. Kubitschek and Jon C. Durbin, Social Security Disability; Law and
Procedure in Federal Court, § 9:58 (2012).
In this instance, plaintiff cannot show good cause. She was represented by counsel
before the agency and through the administrative hearing. Her only argument in this regard
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is that her attorney was a novice in the area. That may be true, but it is not sufficient to
require a remand. Even a novice would know the importance of timely submission of any
and all evidence bearing on his client’s health problems. The usual rule in this circuit is that
a claimant represented by counsel “is presumed to have made his best case before the ALJ.”
Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007). Plaintiff has not demonstrated that
the rule should be ignored in this instance, although he quotes Judge Friendly’s
characterization of the Social Security regulations as “Byzantine,” and “almost unintelligible
to the uninitiated,” Friedman v. Burger, 547 F.2d 724, 727 n.7 (2d Cir. 1976). It is doubtful
that Judge Friendly would have included the submission of relevant medical records as one
of the Byzantine aspects of the Social Security Act.
In any event, even if I overlooked counsel’s failure in this regard, the material that
plaintiff wants to submit is not “new” in the sense that it could not have been obtained
before plaintiff’s hearing. According to his report, Dr. Neuhoff had been treating plaintiff
for ten years, so he could have submitted records of earlier treatment and he would have had
the necessary information for a report long before he prepared the report in May 2012.
Perkins, 107 F.3d at 1296 (“‘new’ means evidence “not in existence or available to the
claimant at the time of the administrative proceeding”) (quoting Sample v. Shalala, 999 F.2d
1138, 1144 (7th Cir. 1993)) (emphasis added). In Perkins, the court of appeals noted that
although the doctor’s evaluations were not in existence at the time of the claimant’s hearing,
the information on which he based his conclusions was and therefore his report did not
qualify as “new.”
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In short, plaintiff has not shown that she is entitled to a remand of this case to the
commissioner under 42 U.S.C. § 405(g).
ORDER
IT IS ORDERED that plaintiff Jenny Beth Jenkinson’s motion for summary
judgment, dkt. #11, and her request for a remand of this case to defendant Carolyn W.
Colvin, Acting Commissioner of Social Security, are DENIED. The clerk of court is directed
to enter judgment in favor of defendant and close this case.
Entered this 20th day of December, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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