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Mai V. v. Berryhill

United States District Court, D. Minnesota

January 22, 2019

MAI V., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DAVID T. SCHULTZ, UNITED STATES MAGISTRATE JUDGE

         James Greeman, Esq., Greeman Toomey, 250 Marquette Avenue, Suite 1380, Minneapolis, MN 55401, for plaintiff Kizuwanda Curtis, Esq., Social Security Administration, 1301 Young Street, Suite A702, Dallas, TX 75202, and Pamela A. Marentette, Assistant U.S. Attorney, 600 U.S. Courthouse, 300 South Fourth Street, Minneapolis, MN 55415, for defendant Mai V. appeals the Commissioner of Social Security's denial of her application for disability insurance benefits (DIB) and supplemental security income (SSI) benefits. Docket No. 1. She contends that the ALJ erred in discounting the opinions of her treating psychologist and other sources and that the Commissioner's decision to deny benefits is not supported by substantial evidence in the record. For the reasons stated below, the Court recommends that the Commissioner's decision be affirmed.

         I. ALJ DECISION

         The Commissioner uses a five-step sequential evaluation process to determine whether a claimant is entitled to disability benefits. 20 C.F.R. § 404.1520(a). The Commissioner evaluates “(1) whether the claimant is currently employed; (2) whether the claimant is severely impaired; (3) whether the impairment is, or approximates, a listed impairment; (4) whether the claimant can perform past relevant work; and if not, (5) whether the claimant can perform any other kind of work.” Brock v. Astrue, 674 F.3d 1062, 1064 n.1 (8th Cir. 2012); see also 20 C.F.R. § 404.1520(a)(4).

         The ALJ issued her decision on August 26, 2016. In steps one through three, she found that Mai V. has not engaged in substantial gainful activity since August 18, 2012[1]; has several severe physical and mental impairments - history of right wrist fracture, chronic pain syndrome, history of cardiovascular accident, depression, and anxiety - that do not meet or medically equal any listed impairment contained in 20 C.F.R., Part 404, Subpart P, Appendix 1; and has the residual functional capacity (RFC) to perform light work with certain identified limitations. R. 218-20.[2] At step four the ALJ found that Mai V. is capable of performing her past relevant work (PRW) as an assembler of hospital products and thus concluded she was not disabled. R. 226-27.

         II. STANDARD OF REVIEW

         The Commissioner's denial of disability benefits is subject to judicial review. 42 U.S.C. §§ 405(g), 1383(c)(3). This Court has authority to “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing a decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” Id. § 405(g) (sentence four).

         Disability under the Social Security Act means 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.” Id. § 423(d)(1)(A). Under the regulations, disability means that the impairment(s) is/are so severe that the claimant is not only unable to engage in previous work, but cannot engage in any other kind of substantial gainful employment that exists in the national economy. Id. § 423(d)(2)(A).

         This Court “must affirm the Commissioner's decision if it is supported by substantial evidence on the record as a whole.” Telkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006). Substantial evidence is “less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion.” Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir. 2003). On review, the Court considers “both evidence that detracts from and evidence that supports the Commissioner's decision.” Hartfield v. Barnhart, 384 F.3d 986, 988 (8th Cir. 2004). If it is possible, based on the evidence in the record, to reach two inconsistent decisions, and one of those decisions is the Commissioner's position, the decision must be affirmed. Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). In other words, the denial of benefits will not be disturbed “so long as the ALJ's decision falls within the available zone of choice. An ALJ's decision is not outside the zone of choice simply because [the reviewing court] might have reached a different conclusion had [it] been the initial trier of fact.” Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008); see also Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988) (“The concept of substantial evidence . . . embodies a zone of choice within which the Secretary may grant or deny benefits without being subject to reversal on appeal.”).

         The claimant bears the burden of proving entitlement to disability benefits. See 20 C.F.R. § 404.1512(a); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). Once the claimant demonstrates that he or she cannot perform past work due to a disability, the burden “shifts to the Commissioner to prove, first that the claimant retains the residual functional capacity to do other kinds of work, and, second that other work exists in substantial numbers in the national economy that the claimant is able to do.” Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000).

         III. ANALYSIS

         Mai V. contends that the ALJ erred in finding her not disabled based on her determination that Mai V. could perform her past work as an assembler of hospital products. Mai V. argues that her mental limitations are more severe than the ALJ found and the ALJ erred in giving more weight to the opinions of non-examining agency psychological consultants than those of her treating psychologist, Dr. Nicole Ward, and other sources.

         In making a disability determination, an ALJ considers evidence that includes “medical opinion” evidence of the claimant's “impairment-related limitations or restrictions.” 20 C.F.R. § 416.913(a)(2). Such limitations include the claimant's “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions” and “ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting.” Id. § 416.913(a)(2)(i)(A) and (B).

         A treating physician's opinion should be given controlling weight when it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002). The record must be evaluated as a whole to determine whether the treating physician's opinion should control. Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009). The ALJ must always give “good reasons” for the weight afforded to the treating source's opinion. Id. at 680; 20 C.F.R. § 404.1527(c)(2).

         The ALJ found that Mai V. has both physical and mental limitations on her ability to work. R. 220. The physical limitations are not disputed in this appeal. As to her mental limitations, the ALJ found that Mai V. has “mild” restriction in activities of daily living, with “moderate” difficulties in social functioning and in concentration, persistence or pace. R. 219. She determined that Mai V. has the residual functional capacity (RFC) to perform light work with certain restrictions: lifting up to 20 pounds occasionally and 10 pounds frequently; 6 hours of walking or standing and 2 hours of sitting in an 8-hour workday; no more than occasional bending, stooping, crouching, kneeling, or crawling; no more than occasional overhead work; no power gripping on the right dominant upper ...


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