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Susan B.B. v. Berryhill

United States District Court, D. Minnesota

December 28, 2018

Susan B.B., Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.



         This matter is before the Court on Plaintiff Susan B.B.'s (“Plaintiff”) Motion for Summary Judgment (Dkt. No. 17) (“Motion”) and Defendant Acting Commissioner of Social Security Nancy A. Berryhill's (“Defendant”) Cross Motion for Summary Judgment (Dkt. No. 21) (“Cross Motion”). Plaintiff filed this case seeking judicial review of a final decision by Defendant denying her application for disability insurance benefits. She specifically challenges the Administrative Law Judge's (“ALJ”) evaluation of Plaintiff's treating physician's opinion and the ALJ's evaluation of Plaintiff's work history in the ALJ's credibility assessment. For the reasons stated below, Plaintiff's Motion is denied, and Defendant's Cross Motion is granted.

         I. BACKGROUND

         Plaintiff filed an application for disability insurance benefits on August 20, 2014, alleging disability beginning on September 1, 2013. (R. 15.)[1] Her application was denied initially and on reconsideration. (Id.) Plaintiff requested a hearing before an ALJ, which was held by video on September 6, 2016 before ALJ Lyle Olson. (R. 15-26.) The ALJ issued an unfavorable decision on October 13, 2016. (R. 12.) Following the five-step sequential evaluation process under 20 C.F.R. § 404.1520(a), the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since September 1, 2013. (R. 16-17.)

         At step two, the ALJ determined that Plaintiff had the following severe impairments: obesity, status post bilateral total knee arthropathies, lumbar degenerative disc disease (“DDD”) with hypertrophic facet arthropathy, compression fractures at ¶ 1 and from L3 to L5, grade 1 anterolisthesis of L5 on S1 with chronic bilateral spondylosis at ¶ 5, cervical DDD with moderate central canal and bilateral neural foraminal stenosis at ¶ 5-6, and bilateral carpal tunnel syndrome (CTS) with noted right middle trigger finger. (R. 17.) The ALJ determined that Plaintiff's other physical impairments were not severe, including seizures, a left leg wound, and hearing issues. (R. 18.) The ALJ noted that Plaintiff's seizures are controlled with medication, her leg wound healed in less than 12 months after onset, and Plaintiff refused testing related to the alleged hearing issues. (Id.)

         At the third step, the ALJ determined that Plaintiff does not have an impairment that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. part 404, subpart P, appendix 1. (Id.) The ALJ concluded that Plaintiff's spinal impairments do not rise to the level of compromise of the nerve root or spinal cord required by Listing 1.04. (Id.) The ALJ also determined that Plaintiff's ailments did not meet the requirements of major dysfunction of a joint of Listing 1.02 because the evidence does not demonstrate that Plaintiff has the degree of difficulty required. (R. 18-19.)

         At step four, after reviewing the entire record, the ALJ concluded that Plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), including the ability to lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday; sit (with normal breaks) for a total of about 6 hours in an 8-hour workday; frequently reach to shoulder level and all directions other than overhead, bilateral upper extremities; frequently handle, finger and feel, bilateral hands; occasionally engage in the operation of foot controls, bilateral lower extremities; occasionally climb stairs/ramps, balance, stoop, kneel, crouch and crawl. (R. 19.) The ALJ determined that Plaintiff should never reach overhead, bilateral upper extremities, and never climb ladders/scaffolds, or work at unprotected heights or work with dangerous moving mechanical parts. (R. 19.) With this RFC, the ALJ determined that Plaintiff is capable of performing past relevant work as a cosmetologist at a light exertion level, which Plaintiff had continued performing on a part-time basis at a medium exertion level after the September 1, 2013 date on which she alleges her disability began.[2] (R. 24, 61.) Alternatively, the ALJ determined that Plaintiff is capable of performing other jobs that exist in significant numbers in the national economy, including sales attendant, survey worker, and mailroom clerk, which are classified as light exertion and unskilled in the Dictionary of Occupational Titles. (R. 25.) Accordingly, the ALJ deemed Plaintiff not disabled. (Id.)

         Plaintiff requested review of the decision. (R. 1.) The Appeals Council denied Plaintiff's request for review, which made the ALJ's decision the final decision of the Commissioner. (R. 1.) Plaintiff then commenced this action for judicial review. The Court has reviewed the entire administrative record, giving particular attention to the facts and records cited by the parties. The Court will recount the facts of record only to the extent they are helpful for context or necessary for resolution of the specific issues presented in the parties' motions.


         Judicial review of the Commissioner's denial of benefits is limited to determining whether substantial evidence on the record as a whole supports the decision, 42 U.S.C. § 405(g), or if the ALJ's decision resulted from an error of law. Nash v. Comm'r, Soc. Sec. Administration, 907 F.3d 1086, 1089 (8th Cir. 2018) (citing 42 U.S.C. § 405(g); Chismarich v. Berryhill, 888 F.3d 978, 979 (8th Cir. 2018)). “Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it adequate to support the Commissioner's conclusions.” Id. (quoting Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007)). The Court “considers evidence that detracts from the Commissioner's decision as well as evidence that supports it.” Id. “If substantial evidence supports the Commissioner's conclusions, this court does not reverse even if it would reach a different conclusion, or merely because substantial evidence also supports the contrary outcome.” Id.

         “A disability claimant has the burden to establish her RFC.” Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). The Eighth Circuit has held that “a ‘claimant's residual functional capacity is a medical question.'” Id. (quoting Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)). “‘[S]ome medical evidence' must support the determination of the claimant's RFC, and the ALJ should obtain medical evidence that addresses the claimant's ‘ability to function in the workplace.'” Id. (quoting Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (per curiam)).

         An ALJ should consider several factors, in addition to the objective medical evidence, in assessing a claimant's subjective symptoms, including daily activities; work history; intensity, duration, and frequency of symptoms; any side effects and efficacy of medications; triggering and aggravating factors; and functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); Social Security Ruling (“SSR”) 16-3p, 2016 WL 1119029, at *5-7 (S.S.A. Mar. 16, 2016) (listing these factors as relevant in evaluating the intensity, persistence, and limiting effects of a person's symptoms). But the ALJ need not explicitly discuss each factor, Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005), and a court should defer to the ALJ's credibility findings when the ALJ provides good reasons for discrediting claimant's statements, Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990). The ALJ “is in a better position to gauge credibility and resolve conflicts in evidence.” Nash, 907 F.3d at 1090 (quoting Julin v. Colvin, 826 F.3d 1082, 1086 (8th Cir. 2016)).


         A. The Weight Assigned to the Treating Physician's Opinion

         Plaintiff contends that the ALJ failed to properly consider the opinion of Plaintiff's treating physician, Dr. Lembcke, and therefore formulated an RFC that failed to incorporate all of Plaintiff's limitations. (Dkt. No. 18 at 4.) Plaintiff argues this error was significant for two reasons. First, according to Plaintiff, Dr. Lembcke's opinion that she would be absent from work more than three times a month requires the conclusion that she is disabled within the meaning of the Act, since “the Agency defines the ‘ability to work' as the ability to do so full-time, or on a ‘regular and continuing basis' . . . 8 hours a day, for five days a week, or an equivalent work schedule. (Id. at 7 (quoting SSR 96-8p).) Second, Plaintiff argues that if her treating physician's ...

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