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Shanda v. Colvin

United States District Court, D. Minnesota

June 23, 2015

DEA M. SHANDA, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JANIE S. MAYERON, Magistrate Judge.

This matter is before the Court upon the parties' cross-motions for summary judgment. [Docket Nos. 8 and 10]. This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). The matter has been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c).


Plaintiff Dea Shanda ("Shanda") applied for disability insurance benefits ("DIB") on July 6, 2011. (Tr. 30, 58). Shanda alleged a disability onset date of July 1, 2009, as a result of knee, neck, and shoulder problems; bilateral knee degenerative joint disease; right shoulder impingement; right shoulder rotator cuff tear and repair; and chronic lower back pain with degenerative joint disease. (Tr. 59, 160). Shanda was last insured for Social Security benefits on September 30, 2013. (Tr. 156).

The Social Security Administration ("SSA") denied Shanda's application for benefits on September 1, 2011, (Tr. 58-59, 63-65), and on reconsideration on December 6, 2011. (Tr. 60-62, 71-72). Shanda timely requested a hearing before an Administrative Law Judge ("ALJ") on December 12, 2011. (Tr. 74-75). On February 26, 2013, a hearing was held before ALJ Paul Gaughen. (Tr. 13, 29-57). Shanda was represented by Lionel Peabody, Esq. (Tr. 30, 31). Shanda testified at the hearing, as did James Parker, a vocational expert ("VE"). (Tr. 34-56).

On March 8, 2013, the ALJ issued his decision denying benefits. (Tr. 13-22). Shanda sought further review of the ALJ's decision by the Appeals Council. (Tr. 7-9). On April 30, 2014, the Appeals Council denied Shanda's request for review, making the ALJ's decision final. (Tr. 1-3).

Shanda sought judicial review of the ALJ's decision by filing a Complaint pursuant to 42 U.S.C. § 405. [Docket No. 1]. The parties then filed cross-motions for summary judgment. [Docket Nos. 8 and 10].


Congress has prescribed the standards by which Social Security disability benefits may be awarded. "The Social Security program provides benefits to people who are aged, blind, or who suffer from a physical or mental disability." Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); 42 U.S.C. § 1382(a). 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 [her] previous work but cannot, considering [her] 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.

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. 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. 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, 968 F.2d at 727. 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, although review is not automatic. 20 C.F.R. §§ 404.967-404.982. 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.

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 nonexertional 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). The Court "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). 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).

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).


The ALJ concluded that Shanda was not disabled within the meaning of SSA regulations during the relevant period between July 1, 2009, and September 30, 2013. In support, the ALJ made the following determinations under the five-step disability evaluation process:

As step one, the ALJ determined that Shanda had not engaged in substantial gainful activity since July 1, 2009, the date of alleged disability onset. (Tr. 15). The ALJ noted that Shanda had worked 12 hours a week as a group home health aide until June, 2011, but her earnings were lower than the monthly threshold for substantial gainful activity. ( Id., citing Tr. 144-55, 174-81).

At step two, the ALJ determined that Shanda had the following severe impairments: bilateral knee degenerative joint disease, status post right shoulder rotator cuff repair, cervical myelopathy, lumbar degenerative disk disease, and obesity. (Id..). The ALJ noted that the record reflected a diagnosis of bilateral carpal tunnel syndrome. However, the ALJ concluded that this condition caused no more than minimal limitations because Shanda had not sought treatment for carpal tunnel syndrome prior to 2013. (Tr. 16, citing Tr. 166-73, 478-82).

The ALJ also found that Shanda's alleged depression was non-severe because it caused no more than minimal limitation in her ability to perform basic mental work activities. (Id.). In reaching this determination, the ALJ considered the four broad functional areas used for evaluating mental disorders, known as the "paragraph B" criteria, as set forth in section 12.00(C) of 20 C.F.R. Pt. 404, Subpt. P, App. 1.[1] (Id.).

As to the first functional area, "activities of daily living, " the ALJ found that Shanda had no limitation. In July, 2011, Shanda stated that she would run errands, exercise, cook, play games, do housework, shop twice a week, read books, and sew without any problems completing tasks or following directions. ( Id., citing Tr. 166-73).

In the second functional area, "social functioning, " the ALJ found that Shanda had no limitation because she did not allege any difficulties getting along with others or being in public. (Id.). In addition, Shanda reported spending time with people every week and visiting her parents in the nursing home. ( Id., citing Tr. 166-73).

In the third functional area, "concentration, persistence or pace, " the ALJ determined that Shanda had mild limitations. (Id.). Although Shanda alleged that she lost concentration after 30 minutes, she also stated that she could cook, do chores and shop, which indicated sufficient concentration for performing activities. (Id.). Shanda also reported losing over 50 pounds in one year, which also suggested sustained concentration. (Id.). In July, 2011, Shanda was able to walk her dog, run errands, cook, play games, perform light gardening, read and sew. (Id.). She denied any problems with memory, concentration, or completing tasks, and stated that she could handle moderate stress and changes in routine. (Tr. 16-17, citing Tr. 166-73).

As to the fourth functional area, "episodes of decompensation, " the ALJ found that Shanda had experienced no episodes of decompensation of extended duration and had not required emergent psychiatric care. (Tr. 17).

Because Shanda's medically determinable mental impairment of depression caused no more than "mild" limitations in the first three functional areas, and no episodes of decompensation in the fourth area, the ALJ concluded that Shanda's depression was non-severe. ( Id., citing 20 C.F.R. § 404.1520a(d)(1)).

Lastly, the ALJ noted that Shanda had alleged disability from post-traumatic stress disorder ("PTSD"). However, because Shanda had not been diagnosed with PTSD by an acceptable medical source, and because the record contained no mental status examinations or clinical observations indicating such a condition, the ALJ concluded that PTSD was not a medically determinable impairment. ( Id., citing Tr. 467).

At step three of the disability evaluation process, the ALJ determined that Shanda's symptoms did not meet or medically equal the severity of one of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpt. P, App. 1. ( Id., citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). In particular, the ALJ found that Shanda's impairments did not meet Listing 1.02 (Major Dysfunction of a Joint) or Listing 1.04 (Disorders of the Spine). (Id.).

With respect to Shanda's obesity, the ALJ found that Shanda's obesity did not meet or equal a listed disorder because the evidence did not demonstrate that the combination of Shanda's bilateral knee degerative joint disease, status post right shoulder rotator cuff repair, cervical myelopathy, lumbar degenerative disk disease, and obesity resulted in sufficiently severe limitations. (Tr. 18).

At step four of the disability evaluation process, the ALJ determined that Shanda had the following residual functional capacity ("RFC"):

[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can be on the feet standing and walking up to 2 hours total and sitting 6 hours total in an 8-hour workday. If she has a lunch break to split the shift and short breaks after every second hour, she can sit unrestricted. If she spends two hours on the feet, the balance of the workday can be performed in a seated position. She is limited to less than occasional bending, kneeling, stooping, and vigorous twisting of the body from side to side for up to 10 percent of the workday. She can occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, and continuously handle 5 pounds if lifted up to chest height. With the dominant right arm, she can lift overhead no more than 3 pounds briefly for less than 1/3 of the workday, but is not impaired in the bilateral upper extremities in gripping, fingering, moving in all directions, or frequently extending in front of the body.


Based on all of the evidence, the ALJ concluded that Shanda's medically determinable impairments could reasonably be expected to cause her alleged symptoms. However, he did not credit Shanda's statements as to the intensity, persistence and limiting effects of her impairments. (Tr. 19).

With respect to Shanda's pain, the ALJ found that the medical evidence and treatment history did not support the severity of limitations alleged by Shanda. (Id.). In support, the ALJ summarized the records as follows: Shanda underwent a right shoulder rotator cuff repair in May, 2009, and presented with knee soreness in July, 2009. ( Id., citing Tr. 221, 339). In October, 2009, orthopedist Dr. William Schnell noted Shanda's "excellent strength with external and internal rotation, slightly tender AC joint, and mildly restricted range of motion of the shoulder." ( Id., citing Tr. 255). In September, 2010, bilateral knee MRI scans indicated grade 4-5 chondromalacia patella[2] in the both knees. ( Id., citing Tr. 214-17, 254). Dr. Schnell performed arthroscopic meniscectomies on both knees in October and December, 2010. ( Id., citing Tr. 237, 239). In March, 2011, Shanda exhibited painless full range of motion and excellent strength in the right shoulder. ( Id., citing Tr. 247). However, Shanda showed severely limited range of motion in her back, and a lumbar MRI revealed mild to moderate degenerative disk disease. ( Id., citing Tr. 234, 247). In July, 2011, Dr. Schnell noted mildly warm knees, with diminished range of motion and osteoarthritic changes in both knees. ( Id., citing Tr. 401). Nevertheless, Dr. Schnell determined that surgery was not warranted and recommended continued weight loss and observation of symptoms. (Id.). In August, 2011, Dr. Hal Heyer observed that Shanda needed a cane to walk, but he also noted that Shanda found great relief and improvement in her knees following steroid injections. ( Id., citing Tr. 468). In September, 2011, Dr. Schnell diagnosed Shanda with significant bilateral patellofemoral crepitus[3] with tender medial and lateral joint lines, and recommended continued exercise rehabilitation. ( Id., citing Tr. 402). In March, 2012, Dr. Heyer noted Shanda's weight loss of 40 pounds, non-use of a cane, improved bilateral weakness, and slightly limited range of motion. ( Id., citing Tr. 469). In December, 2012, Dr. James Donovan noted a 53-pound weight loss over the year and a BMI of 37.73. ( Id., citing Tr. 470). In February, 2013, Dr. Daniel Wallerstein, observed limited cervical range of motion, minimally limited shoulder flexion, mild to moderately limited shoulder abduction, mildly limited lumbar extension and mobility, mild balance instability while changing direction, smooth gait, negative straight leg raise, and no significant weakness or sensory deficits. (Tr. 19-20, citing Tr. 478-82).

According to the ALJ, Shanda's treatment history indicated improvement of symptoms after surgery, physical therapy, steroid injections, and weight loss. (Tr. 20). Specifically, the ALJ noted that in September, 2009, Shanda exhibited nearly full passive range of motion in the right shoulder after 31 physical therapy sessions. ( Id., citing Tr. 349). Shanda did not return to Dr. Schnell until September, 2010. ( Id., citing Tr. 244). In February, 2011, Shanda was discharged from physical therapy for her knees after meeting most of her goals and exhibiting minimal complaints of pain. ( Id., citing Tr. 361). In July, 2011, Dr. Schnell advised against surgery, and Shanda was discharged from physical therapy for her neck and back pain after meeting all goals. ( Id., citing Tr. 369, 372, 401). After experiencing a fall, Shanda attended physical therapy from April to August, 2012, for lower back, neck and shoulder pain, and received two lumbar steroid injections in March and July, 2012; upon discharge, Shanda reported feeling much better and exhibited improved exercise. ( Id., citing Tr. 417, 418-19, 469). At the hearing, Shanda admitted that her pain improved after losing weight and taking ibuprofen. (Id.).

The ALJ found inconsistencies in Shanda's work history and daily activities. Shanda continued to work 12 hours a week as a home health aide until June, 2011, two years after the alleged disability onset date. ( Id., citing Tr. 144-55). In her work as a home health aide, Shanda cooked, cleaned, did laundry, and assisted clients with bathing and dressing 2-3 times per shift, which required lifting clients weighing more than 100 pounds. ( Id., citing Tr. 175). Shanda also reported working at home and taking computer courses until injuring her shoulder in September, 2010. ( Id., citing Tr. 478-82). However, the ALJ noted that the record lacked any complaints of a shoulder injury around September, 2010, that would have affected Shanda's ability to use her arms. ( Id., citing Tr. 222-24, 254-55).

With regard to activities of daily living, Shanda reported cooking, shopping, housekeeping, sewing, reading, playing games, doing laundry and light gardening, walking the dog up to six blocks, and visiting her parents in the nursing home. ( Id., citing Tr. 166-73). Although Shanda previously used a cane, she no longer required one by March, 2012. (Id.). As of late 2012, Shanda reported walking her dog 30 minutes a day and exercising with weights. ( Id., citing Tr. 455, 470).

The ALJ stated that he had accounted for Shanda's obesity, cervical myelopathy, bilateral knee degenerative joint disease, and lumbar degenerative disk disease by limiting Shanda to "a range of light exertion work in which she can stand and walk up to 2 hours total in an 8-hour workday but can only bend, kneel, stoop, and vigorously twist the body from side to side for up to 10 percent of the workday." (Id.). The ALJ further indicated that, because of her status post right shoulder rotator cuff repair, Shanda could lift overhead with the dominant right arm no more than 3 pounds briefly for less than 1/3 of the workday. (Id.).

The ALJ gave significant weight to Dr. Schnell, who recommended that Shanda return to work without restriction after her right shoulder and bilateral knee surgeries because this opinion was consistent with Dr. Schnell's examinations and Shanda's treatment history and activities of daily living. (Tr. 20-21, citing Tr. 248, 255).

With regard to Shanda's primary physician, Dr. Viren, who had concluded that Shanda was "disabled by her pain'" in July, 2011, the ALJ assigned her opinion little weight because she had failed to cite any objective clinical findings to support her opinion, and it was inconsistent with Shanda's documented improvement after physical therapy and lumbar steroid injections. (Tr. 21, citing Tr. 229).

The ALJ afforded great weight to Dr. Wallerstein's opinion that Shanda could "stand up to 2 hours total, sit the balance of the workday, and lift up to 20 pounds occasionally, " because this finding was consistent with Dr. Wallerstein's "generally minimal examination findings" and Shanda's daily activities. However, the ALJ gave little weight to Dr. Wallerstein's opinion that Shanda could only work 4 to 6 hours a day, with 2 to 3 minute breaks every 30 minutes to stretch. ( Id., citing Tr. 478-82). According to the ALJ, this opinion was inconsistent with Dr. Wallerstein's examinations and the record as a whole. ( Id., citing Tr. 478-82).

The ALJ assigned little weight to the opinion of treating therapist Dana Fromberg, LICSW, that Shanda was unable to sustain competitive employment due to the risk of experiencing anhedonia, fatigue, irritability and hypervigilance because it was not supported by treatment notes or mental status examinations and was internally inconsistent with Fromberg's description of Shanda as pleasant, flexible, and persistent. ( Id., citing Tr. 467).

The ALJ also granted little weight to the State Agency psychological consultants who found that Shanda had no medically determinable mental impairment, as newer evidence supported a medically determinable impairment of depression. ( Id., citing 407-09).

As for the State Agency medical consultants' opinions that Shanda was capable of the range of light work, with the ability to stand and walk at least two hours and occasionally lift overhead with the right arm, the ALJ assigned them persuasive weight. ( Id., citing Tr. 378-85, 403-07). The ALJ noted that, although these consultants did not examine Shanda, their opinions were consistent with the findings of Shanda's treating sources, as well as Shanda's testimony and activities of daily living. (Id.).

In sum, the ALJ concluded that the RFC assessment was supported by Shanda's work history, activities of daily living, examinations and documented improvement from physical therapy, improved pain from weight loss, and the opinions of Dr. Schnell and the State Agency medical consultants. (Id.).

At the fourth step of the disability evaluation process, the ALJ determined that Shanda was capable of performing past work as a computer-aided drafter because this job was not precluded by Shanda's RFC. (Tr. 22). The ALJ noted that the VE had opined that a person of Shanda's age, education, work experience and RFC could perform Shanda's past work as a computer-aided drafter because such work was consistent with Shanda's limitations of fingering, gripping, and extension away from the body. (Id.). According to the ALJ, the testimony of the VE was highly credible and consistent with Dictionary of Occupational Titles. (Id.). The ALJ further noted that Shanda could perform the work of a computer-aided drafter as actually and generally performed. (Id.).

For all of these reasons, the ALJ concluded that Shanda was not disabled for the period of July 1, 2009 through March 8, 2013. (Id.).


A. Shanda's Motion for Summary Judgment

In support of her motion for summary judgment, Shanda argued that the ALJ's RFC assessment failed to include the limitations in reaching and concentration shown by the record, and therefore, the VE's testimony was not substantial evidence supporting the Commissioner's denial of benefits. Plaintiff's Memorandum in Support of Motion for Summary Judgment ("Pl.'s Mem."), p. 18 [Docket No. 9]. Shanda noted that under the ALJ's findings, she must be found disabled if she cannot perform her past work as a computer assisted drafter. Id., p. 19.

With respect to limitations in reaching, Shanda contended that the ALJ failed to mention Dr. Wallerstein's opinion that she could not perform frequent, repetitive or prolonged reaching away from her body, and did not give any reason why that opinion should be ignored. Id., p. 20. Shanda also asserted that the ALJ ignored the opinions of the State Agency medical consultants who found that reaching in all directions was limited, and use of the right arm for repetitive reaching was limited to occasional. Id., p. 21. Shanda further submitted that although the ALJ claimed he gave significant weight to the opinion of Dr. Schnell-who released Shanda to work without restriction following her shoulder and knee surgeries-the RFC assessment contained significant restrictions that were directly contrary to Dr. Schnell's opinions. Id.

As to concentration, Shanda submitted that the ALJ should have given more weight to Dr. Viren's opinion that Shanda could not sit for any period of time because of back pain. Id., pp. 22-23. Although the ALJ claimed that there were no objective findings to support Dr. Viren's opinion, physical therapy notes indicated continued shoulder pain. Id., p. 23 (citing Tr. 268, 276). In addition, Dr. Viren was Shanda's treating primary care provider who had access to Shanda's entire medical record and made referrals to physical therapy. Id.

Shanda also claimed that the ALJ's decision to give little weight to Dr. Wallerstein's opinion that Shanda could work only 4 to 6 hours a day with 2 to 3 minute stretch breaks every 30 minutes-as it was inconsistent with Dr. Wallerstein's examinations and the record as a whole-should not be upheld because the ALJ failed to specify which part of the examination or the record as whole he relied upon in making that determination. Id . Shanda further noted that Dr. Viren had referred Shanda to Dr. Wallerstein because of his expertise in assessing physical restrictions. Id . (citing Tr. 476).

Lastly, Shanda contended that the ALJ failed to consider the combined effect of her physical and mental impairments (depression) on her ability to sustain the concentration necessary to perform work as a computer-aided drafter. Id., p. 24.

B. Commissioner's Motion for Summary Judgment

The Commissioner argued that Shanda's manipulative limitations, to the extent they were supported by the record, were properly evaluated in the RFC assessment by the ALJ. Defendant's Memorandum in Support of Motion for Summary Judgment ("Def.'s Mem."), p. 6 [Docket No. 11].

The Commissioner disagreed with Shanda's interpretation of the opinion of State Agency medical consultant Dr. Anderson, who stated that Shanda should limit right arm "overhead lifting and repetitive reaching to occasional.'" Id., p. 7 (citing Tr. 381). While Shanda contended that Dr. Anderson had limited repetitive reaching in all directions, the Commissioner submitted that word "overhead" applied to both lifting and reaching limitations. Id . As such, the ALJ's conclusion that Shanda could frequently extend her right arm in front of her body was consistent with Dr. Anderson's opinion. Id . (citing Tr. 18).

The Commissioner also contended that the ALJ properly considered the opinion of Dr. Wallerstein. Id., pp. 7-8. The Commissioner admitted that the ALJ failed to address Dr. Wallerstein's statement that Shanda could not perform frequent, prolonged, or repetitive reaching away from her body. Id . However, the Commissioner asserted that it was clear from the ALJ's decision that he did not give weight to this portion of Dr. Wallerstein's opinion, and, in any event, substantial evidence supported the ALJ's conclusion that Shanda was limited only in her ability to reach overhead. Id., pp. 8-9.

As to limitations on concentration, the Commissioner maintained that the ALJ correctly determined that Shanda was able to work if she had one lunch break and short breaks every second hour. Id., p. 9 (citing Tr. 18). According to the Commissioner, the ALJ properly discounted Dr. Viren's conclusory opinion that Shanda was disabled by her pain, as this opinion was based on Shanda's own subjective complaints. Id., p. 10 (citing Tr. 21, 229). The Commissioner further asserted that Shanda's alleged limitations in concentration were controverted by the record. Id., pp. 10-11.

Finally, the Commissioner argued that the ALJ correctly found that Shanda's medically determinable impairment of depression was non-severe because Shanda did not seek treatment for depression until recently, and such limitations were at odds with Shanda's activities of daily living and her own testimony. Id., pp. 11-12.

B. Shanda's Reply

In reply, Shanda argued that the Commissioner misread the opinion of Dr.

Anderson with respect to Shanda's limitations in reaching. Plaintiff's Reply to Defendant's Memorandum in Support of Summary Judgment ("Pl's. Reply"), pp. 4-5 [Docket No. 12]. Shanda maintained that Dr. Anderson had limited repetitive reaching in all directions, not merely overhead, as this limitation was consistent with the opinion of Dr. Wallerstein and the record as a whole. Id . (citing Tr. 481).

As to the Commissioner's assertion that substantial evidence supported the ALJ's rejection of Dr. Wallerstein's manipulative limitations, Shanda contended that the ALJ did not make this argument, and the Court cannot adopt the Commissioner's posthoc rationalizations for the ALJ's actions. Id., p. 6 (citations omitted). In addition, Shanda argued that her daily activities, medical evidence, and work history were not inconsistent with Dr. Wallerstein's opinion and did not show that Shanda could perform past work as a computer-aided drafter. Id., pp. 6-8.

With respect to concentration, Shanda pointed to her testimony and evidence in the record that showed that she could not maintain the high level of focus and concentration necessary to work as a computer-aided drafter. Id., pp. 8-12. She asserted that her testimony-that she could not sit in a chair long enough to maintain her concentration because of the pain in her back, knee and leg; she did not sleep well because of the pain, and was thus fatigued; and she had been having problems with depression for some time-was all supported by the opinions of Dr. Viren, Dr. Wallerstein, and the medical and physical therapy records. Id., pp. 10-12. Although the ALJ found that Shanda's medically determinable impairment of depression was nonsevere, Shanda argued that the ALJ was required to consider how her depression- along with her severe physical impairments to the knees, right shoulder, cervical and lumbar spine, and obesity, alone or in combination-affected her ability to sustain the level of concentration required for computer-aided drafting. Id., pp. 12-14. As for the Commissioner's reliance on the ALJ's discussion of her ability engage in a variety of daily activities to support his assessment of her ability to concentrate, Shanda maintained that her ability to cook, do chores and shop did not require the high level of concentration required to perform computer-aided drafting and, therefore, were not probative of her ability to perform such work. Id., p. 13.


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