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Simmon v. Colvin

United States District Court, D. Minnesota

December 2, 2014


For Jeffrey Briant Simmon, Plaintiff: Carol Louise Lewis, Carol Lewis, Attorney at Law, St. Cloud, MN.

For Carolyn Colvin, Acting Commissioner of Social Security, Defendant: Ann M Bildtsen, LEAD ATTORNEY, United States Attorney's Office, Minneapolis, MN.


JANIE S. MAYERON, United State Magistrate Judge.

This matter is before the Court on cross-motions for summary judgment. [Docket Nos. 13 and 15]. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c).

For the reasons discussed below, it is recommended that Plaintiff's Motion for Summary Judgment [Docket No. 13] be DENIED and that Defendant's Motion for Summary Judgment [Docket No. 15] be GRANTED.


Plaintiff Jeffrey Briant Simmon protectively applied for Disability Insurance Benefits and Supplemental Security Income on December 20, 2010. (Tr. 212-223). Simmon alleged an onset date of November 15, 2010, based on his history of a heart condition, high blood pressure, heart attacks and a pacemaker. (Tr. 262). The Social Security Administration (" SSA") denied Simmon's application initially on February 23, 2011, and on reconsideration on April 18, 2011. (Tr. 143-145, 159-160). Simmon requested a hearing pursuant to 20 C.F.R. 404.929 et. seq. and 416.1429 et. seq. (Tr. 166-167). A hearing was held by video teleconference on August 15, 2012, before Administrative Law Judge Neil Sullivan. (Tr. 60-97). Simmon was represented by counsel. Cheryl Zilka, a vocational expert (" VE") testified at hearing, as did Simmon.

On September 14, 2012, the ALJ issued his decision denying Simmon's concurrent applications. (Tr. 19-29). Simmon sought a review of the ALJ's decision by the SSA's Appeals Council. (Tr. 11-13). The Appeals Council denied Simmon's request for review, making the ALJ's decision final. (Tr. 1-4). See 20 C.F.R. § § 404.981, 416.1481 42 U.S.C. § 405(g); Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992); 20 C.F.R. § § 404.981, 416.1481. In connection with his Request for Review, Simmon submitted medical evidence not considered by the ALJ and dating from October, 2012. (Tr. 2, 748-762). The Appeals Council rejected this evidence as beyond the scope of the ALJ's decision as to whether Simmon was disabled on or before September 14, 2012. (Tr. 2).[1] Simmon sought review of the ALJ's decision by filing a Complaint pursuant to 42 U.S.C. § 405. [Docket No. 1]. The parties cross-moved for summary judgment. [Docket Nos. 13 and 15].


Congress has prescribed the standards by which Social Security disability benefits may be awarded. The SSA shall find a person disabled if the claimant " is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 1382c(a)(3)(A). The claimant's impairments must be " of such severity that (the claimant) 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. § 1382c(a)(3)(B). The impairment must last for a continuous period of at least twelve months or be expected to result in death. 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. § § 404.1509, 416.909.

If a claimant's initial application for benefits is denied, he or she may request reconsideration of the decision. 20 C.F.R. § § 404.907-09, 416.1407-09. A claimant who is dissatisfied with the reconsidered decision may obtain administrative review by an ALJ. 42 U.S.C. § § 405(b)(1), 1383(c)(1); 20 C.F.R. § § 404.929, 416.1429. To determine the existence and extent of a claimant's disability, the ALJ must follow a five-step sequential analysis, requiring the ALJ to make a series of factual findings regarding the claimant's work history, impairment, residual functional capacity, past work, age, education and work experience. See 20 C.F.R. § § 404.1520, 416.920; see also Locher v. Sullivan, 968 F.2d 727 (8th Cir. 1992). The Eighth Circuit described this five-step process as follows:

The Commissioner of Social Security must evaluate: (1) whether the claimant is presently engaged in a substantial gainful activity; (2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.

Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003).

If the claimant is dissatisfied with the ALJ's decision, he or she may request review by the Appeals Council, though review is not automatic. 20 C.F.R. § § 404.967-404.982, 416.1467-1482. The decision of the Appeals Council (or of the ALJ, if the request for review is denied) is final and binding upon the claimant unless the matter is appealed to Federal District Court within sixty days after notice of the Appeals Council's action. 42 U.S.C. § § 405(g), 1383(c)(3); 20 C.F.R. § § 404.981, 416.1481.

Judicial review of the administrative decision generally proceeds by considering the decision of the ALJ at each of the five steps. The Court is required to review the administrative record as a whole and to consider:

1. The credibility findings made by the ALJ.
2. The plaintiff's vocational factors.
3. The medical evidence from treating and consulting physicians.
4. The plaintiff's subjective complaints relating to exertional and non-exertional activities and impairments.
5. Any corroboration by third parties of plaintiff's impairments.
6. The testimony of vocational experts, when required, which is based upon a proper hypothetical question which sets forth plaintiff's impairment.

Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir. 1989) (citing Brand v. Secretary of HEW, 623 F.2d 523, 527 (8th Cir. 1980)).

This Court's review is limited to determining whether the ALJ's decision is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008); Johnson v. Apfel, 210 F.3d 870, 874 (8th Cir. 2000); Clark v. Chater, 75 F.3d 414, 416 (8th Cir. 1996). " We may reverse and remand findings of the Commissioner only when such findings are not supported by substantial evidence on the record as a whole." Buckner v. Apfel, 213 F.3d 1006, 1012 (8th Cir. 2000) (citation omitted).

Substantial evidence is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). " Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Buckner, 213 F.3d at 1012 (quoting Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)); see also Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009) (citing Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)) (same); Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998) (same).

In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact for that of the ALJ. Hilkemeyer v. Barnhart, 380 F.3d 441, 445 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). The possibility that the Court could draw two inconsistent conclusions from the same record does not prevent a particular finding from being supported by substantial evidence. Culbertson, 30 F.3d at 939. The Court should not reverse the Commissioner's finding merely because evidence may exist to support the opposite conclusion. Buckner, 213 F.3d at 1011; Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994); see also Woolf, 3 F.3d at 1213 (the ALJ's determination must be affirmed, even if substantial evidence would support the opposite finding). Instead, the Court must consider " the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Gavin v. Apfel, 811 F.2d 1195, 1199 (8th Cir. 1987); see also Heino v. Astrue, 578 F.3d 873, 878 (8th Cir. 2009) (quoting Jackson v. Bowen, 873 F.2d 1111, 1113 (8th Cir. 1989)) (same).

The claimant bears the burden of proving his or her entitlement to disability insurance benefits under the Act. See 20 C.F.R. § § 404.1512(a), 416.912(a); Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). Once the claimant has demonstrated he or she cannot perform prior work due to a disability, the burden of proof then shifts to the Commissioner to show that the claimant can engage in some other substantial, gainful activity. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); Martonik v. Heckler, 773 F.2d 236, 239 (8th Cir. 1985).


The ALJ concluded that Simmon was not disabled within the meaning of the SSA's regulations from November 15, 2010 to September 14, 2012 -- the date of the ALJ's decision. (Tr. 29). In support, the ALJ made the following determinations under the five-step process. At Step One, the ALJ determined that Simmon had not engaged in substantial gainful activity since November 15, 2010, the alleged onset date, although the ALJ noted that Simmon had collected unemployment benefits until March, 2011. (Tr. 21). At Step Two, the ALJ found Simmon had the following severe impairments: ischemic heart disease, hypertension, hyperlipidemia and dysfunction of a major joint (shoulder). (Id.). At Step Three, the ALJ found that Simmon's impairments or combination of impairments did not meet or equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. In particular, the ALJ concluded that the medical evidence regarding Simmon's shoulder pain did not meet Listing 1.02 for major dysfunction of a joint. (Tr. 22). In making this determination, the ALJ also considered Listing 4.04 -- Ischemic Heart Disease. (Id.). The ALJ found that the record contained no medical findings that Simmon met the criteria of this Listing. (Id.).

Before considering Step Four of the analysis, the ALJ determined Simmon's residual functional capacity (" RFC"): he could perform light work with the additional restrictions that he could never climb ladders, ropes or scaffolds and could only occasionally climb ramps or stairs. (Id.). In addition, Simmon could frequently stoop, kneel, or crouch and could only occasionally crawl or balance. (Id.). The ALJ found Simmon limited to occasional overhead reaching with the left upper extremity, and could frequently use gross manipulation and fine-finger manipulation of objects with the upper left extremity. (Id.). Finally, the ALJ found Simmon should avoid concentrated exposure to the use of hazardous machinery, operational control of moving machinery, and unprotected heights. (Id.).

In developing this RFC, the ALJ considered Simmon's medical records and the opinions of State Agency physicians Dr. Gregory Salmi and Dr. Dan Larson. (Tr. 25). The ALJ noted that Dr. Salmi opined that Simmon could occasionally lift and carry up to 20 pounds and frequently lift and carry up to ten pounds (Id., citing Tr. 103). Dr. Salmi further opined that Simmon could stand or walk about six hours in an 8-hour day and sit about 6 hours in an 8-hour day. (Id.). However, Simmon was limited to no overhead reaching on the left due to shoulder pain and pacemaker placement. (Id., citing Tr. 104). Postural limitations included frequent stooping, kneeling and crouching and occasional balancing, crawling and climbing ramps, stairs, ladders, ropes and scaffolds. (Id., citing Tr. 103-104). On reconsideration, Dr. Larson affirmed Dr. Salmi's conclusions. (Id., citing Tr. 125-126). However, Dr. Larson opined that Simmon could do occasional overhead reaching on the left due to improved range of motion and pain control after rehabilitation. (Id., citing Tr. 126). The ALJ gave great weight to these opinions because they were consistent with the record. (Id.). In addition, the ALJ considered medical evidence submitted after the State Agency consultants rendered their opinions and added additional restrictions based on the new evidence of record. (Id.). The ALJ noted the absence in the record of any statements by Simmon's treating physicians that Simmon was unable to work due to his medical conditions. (Tr. 24). The ALJ stated that an RFC limited to light work with postural and manipulative restrictions was appropriate given Simmon's status post-pacemaker implantation with high blood pressure and high cholesterol as well as limitations related to his shoulder surgery, limited range of motion, and reported tingling and cramping in his hand. (Tr. 27).

The ALJ based his decision regarding Simmon's RFC on the following evidence in the record. Simmon was admitted to the hospital in July, 2009 for shortness of breath and underwent suture repair of a post-infarction ventricular septal defect (" VSD") by a left ventriculotomy with placement of an intra-aortic balloon pump. (Tr. 23 citing Tr. 319). Simmon returned to his work of heavy welding. (Id., citing Tr. 509). In November, 2010, Simmon had a biventricular pacemaker inserted. (Id., citing Tr. 420, 487).

In January, 2011, Simmon reported he was doing well and denied any cardiovascular complaints, his physical examination was normal, and he was encouraged to exercise because of low good cholesterol. (Id., citing Tr. 532). Also in January, 2011, Simmon presented to specialist Dr. David Labadie with complaints of increasing pain with motion of his left arm and stiffness. (Id., citing Tr. 540). Dr. Labadie diagnosed Simmon with adhesive capsulitis or frozen shoulder and indicated that this condition may have been aggravated by the pacemaker surgery. (Id., citing Tr. 540). Dr. Labadie recommended corticosteroid injections and physical therapy. (Id., citing Tr. 540). Simmon had the injections and attended ten physical therapy sessions, after which he reported improved pain and range of motion. (Id., citing Tr. 540, 551).

Simmon continued to seek care for his blood pressure and pacemaker functioning. (Tr. 23). At an office visit with his primary care physician, Dr. Robert Mullaney in December, 2010, Simmon's blood pressure was high, but he was asymptomatic. (Tr. 23, citing Tr. 502). Simmon told Dr. Mullaney that his heart hurt at times, but he attributed this to his pacemaker and did not report any other symptoms. (Id., citing Tr. 502). The ALJ noted that in March, 2011, Simmon had pain near his pacemaker site and Dr. Mullaney suspected that it was positional or from irritation at the surgical site. (Tr. 23 citing Tr. 546). Dr. Mullaney reported that Simmon had excellent exercise tolerance, no respiratory symptoms and his blood pressure was at goal. (Id., citing Tr. 546).

Simmon had arthroscopic shoulder surgery in June, 2011, to repair torn tendons to his left shoulder. (Tr. 24, citing Tr. 592, 601). After the surgery, Simmon experienced a hypertensive crisis, for which he was hospitalized. (Tr. 24, citing Tr. 591). Simmon was monitored for a day and released. (Id., citing Tr. 592). Dr. Mullaney noted that Simmon's blood pressure continued to fluctuate and prescribed medication. (Tr. 23, citing Tr. 721). By July, 2011, Simmon's blood pressure was lower and he reported that he was doing well and did not have any ...

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