United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
BRISBOIS UNITED STATES MAGISTRATE JUDGE.
Timothy M. (hereinafter “Plaintiff”), seeks
judicial review of the decision of the Commissioner of Social
Security (“Defendant”) denying his application
for disability benefits. The matter is before the undersigned
United States Magistrate Judge for disposition pursuant to 28
U.S.C. § 636 and Local Rules 7.2(a)(1). This Court has
jurisdiction over the claims pursuant to 42 U.S.C. §
parties submitted cross-motions for summary judgment, [Docket
Nos. 13, 17], and the Court took the matter under advisement
on the parties' written submissions. For the reasons
discussed below, the Court recommends Plaintiff's Motion
for Summary Judgment, [Docket No. 13], be
DENIED and recommends Defendant's Motion
for Summary Judgment, [Docket No. 17], be
January 24, 2006, Plaintiff filed a Title II application for
a period of disability and disability benefits. (Tr.
229-233). In a decision dated October 9, 2008,
Plaintiff was found disabled as of October 1, 2004. (Tr.
108-114). On July 30, 2015, the Social Security
Administration determined that Plaintiff was no longer
disabled as of July 15, 2015. (Tr. 119- 121). On August 13,
2015, Plaintiff requested reconsideration of the finding that
he was no longer disabled. (Tr. 124-125). On October 14,
2015, Plaintiff's request for reconsideration was denied.
(Tr. 139-151). On October 29, 2015, Plaintiff filed a written
request for a hearing before an Administrative Law Judge
regarding the determination that he is no longer disabled.
Law Judge Roger W. Thomas (hereinafter “ALJ”)
conducted a hearing on June 16, 2016. (Tr. 13). Plaintiff,
along with an independent vocational expert, Mitchell J.
Norman, (“IVE Norman”) testified at the hearing.
(Tr. 13). Dr. Robert N. Wilson, Ph. D. (“Dr.
Wilson”), Plaintiff's treating psychologist, also
appeared at the hearing. (Tr. 13). Due to an office-wide
technical problem with the recording systems, however, Dr.
Wilson was unable to provide testimony at the hearing and
instead submitted written statements and opinions on June 23,
2016. (Tr. 13). Plaintiff was represented by an attorney at
the administrative hearing. (Tr. 13). On August 8, 2016, the
ALJ issued a decision denying Plaintiff's request for a
period of disability and disability insurance benefits. (Tr.
13-36). The ALJ concluded that as of September 30, 2015,
Plaintiff was no longer disabled within the meaning of the
Social Security Act and had not become disabled again since
that date. (Tr. 13).
thereafter sought review of the decision by the Appeals
Council. (Tr. 1-5). Subsequently, on August 14, 2017, the
Appeals Council denied Plaintiff's request for review.
(Tr. 1). Accordingly, the ALJ's decision became the final
decision of the Commissioner. See, 20 C.F.R.
§§ 404.981, 416.1481.
October 12, 2017, Plaintiff filed the present action. (Compl.
[Docket No. 1]). Thereafter, both parties submitted
cross-motions for summary judgment, [Docket Nos. 13, 17], and
the Court took the matter under advisement on the written
Standards of Review
Administrative Law Judge's Eight-Step Analysis
claimant's application for disability benefits is denied,
he may request reconsideration of the decision. 20 C.F.R.
§§ 404.907-404.909. A claimant who is dissatisfied
with the reconsidered decision may then obtain administrative
review by an administrative law judge (“ALJ”). 42
U.S.C. § 405(b)(1); 20 C.F.R. § 404.929.
established an eight-step sequential review process for
determining whether a claimant's disability has ceased.
20 CFR § 404.1594(f). “The regulations for
determining whether a claimant's disability has ceased
may involve up to eight steps.” Dixon v.
Barnhart, 324 F.3d 997, 1000 (8th Cir. 2003). The eight
(1) whether the claimant is currently engaging in substantial
gainful activity, (2) if not, whether the disability
continues because the claimant's impairments meet or
equal the severity of a listed impairment, (3) whether there
has been a medical improvement, (4) if there has been medical
improvement, whether it is related to the claimant's
ability to work, (5) if there has been no medical improvement
or if the medical improvement is not related to the
claimant's ability to work, whether any exception to
medical improvement applies, (6) if there is medical
improvement and it is shown to be related to the
claimant's ability to work, whether all of the
claimant's current impairments in combination are severe,
(7) if the current impairment or combination of impairments
is severe, whether the claimant has the residual functional
capacity to perform any of his past relevant work activity,
and (8) if the claimant is unable to do work performed in the
past, whether the claimant can perform other work.
Id. at 1000-01 (citing 20 CFR § 404.1594(f));
See also, Wilson v. Astrue, No. 4:09cv1468
TCM, 2011 WL 903084, at *11 (E.D. Mo. Mar. 15, 2011).
discontinue a claimant's benefits because his or her
medical condition has improved, the Commissioner must
‘demonstrate that the conditions which previously
rendered the claimant disabled have ameliorated, and that the
improvement in the physical condition is related to
claimant's ability to work.'” Muncy v.
Apfel, 247 F .3d 728, 734 (8th Cir. 2001) (citing
Nelson v. Sullivan, 946 F.2d 1314, 1315 (8th Cir.
1991) (citing 20 CFR § 404.1594(b)(2)-(5)). The Social
Security regulations define a medical improvement as:
[a]ny decrease in the medical severity of [a claimant's]
impairment(s) which was present at the time of the most
recent favorable medical decision that [the claimant] [was]
disabled or continued to be disabled. A determination that
there has been a decrease in medical severity must be based
on changes (improvement) in the symptoms, signs and/or
laboratory findings associated with [the claimant's]
Wilson, 2011 WL 903084, at *11 (quoting 20 CFR
“[m]edical improvement can be found in cases involving
the improvement of a single impairment if that improvement
increases the claimant's overall ability to perform work
related functions.” Id. (citing 20 CFR §
416.994(c)(2)). “Whether a claimant's condition has
improved is primarily a question for the trier of fact,
generally determined by assessing witnesses'
credibility.” Muncy, 247 F.3d at 734 (citing
Nelson, 946 F.2d at 1316).
Appeals Council Review
claimant is dissatisfied with the ALJ's decision, he may
request review by the Appeals Council, although the Appeals
Council need not grant that request for review. See,
20 C.F.R. §§ 404.967-404.982. The decision of the
Appeals Council (or, if the request for review is denied by
the Appeals Council, then the decision of the ALJ) is final
and binding upon the claimant, unless the matter is appealed
to federal court within sixty days after notice of the
Appeals Council's action. See, 42 U.S.C. §
405(g); 20 C.F.R. § 404.981. In this case, the Appeals
Council declined to review the ALJ's decision finding
that Plaintiff was not disabled. (Tr. 1-5).
review of the administrative decision generally proceeds by
considering the decision of the ALJ at each of the eight
steps. Judicial review of the Commissioner's decision to
deny disability benefits, however, is constrained to a
determination of whether the 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); Tellez v. Barnhart, 403 F.3d
953, 956 (8th Cir. 2005); Buckner v. Apfel, 213 F.3d
1006, 1012 (8th Cir. 2000) (“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.”). “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)); Coleman v. Astrue, 498 F.3d 767, 770
(8th Cir. 2007).
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 v. Shalala, 30 F.3d
934, 939 (8th Cir. 1994). The Court should not reverse the
Commissioner's finding merely because evidence may exist
in the administrative record to support the opposite
conclusion. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th
balancing the evidence, if it is possible to reach two
inconsistent positions from the evidence and one of those
positions represents the Commissioner's decision, the
court must affirm the decision. Robinson v.
Sullivan, 956 F.2d 836, 838 (8th Cir. 1992). Thus, the
court will not reverse the ALJ's “denial of
benefits so long as the ALJ's decision falls within the
‘available zone of choice.'” Bradley v.
Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008). The
decision of the ALJ “is not outside the ‘zone of
choice' simply because [the Court] might have reached a
different conclusion had [it] been the initial finder of
fact.” Id. “If, after reviewing the
record, the court finds it is possible to draw two
inconsistent positions from the evidence and one of those
positions represents the ALJ's findings, the court must
affirm the ALJ's decision.” Medhaug v.
Astrue, 578 F.3d 805, 813 (8th Cir. 2009) (quotation
claimant bears the burden under the Social Security Act of
proving that he is disabled. See, 20 C.F.R. §
404.1512(a); Whitman v. Colvin, 762 F.3d 701, 705
(8th Cir. 2014). Once the claimant has demonstrated he cannot
perform prior work due to a disability, the burden then
shifts to the Commissioner to show that the claimant retains
the residual functional capacity (“RFC”) to
engage in some other substantial, gainful activity. Goff
v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005).
Decision Under Review
matter, Administrative Law Judge Roger W. Thomas
(“ALJ”) made the following determinations during
the eight-step disability evaluation process:
one, the ALJ concluded that Plaintiff had not engaged in
substantial gainful activity since October 9, 2008.
(See, Tr. 15). This finding is not in dispute. The
Court will refer to this period as “the adjudicated
period.” At step two, the ALJ concluded that since
“September 30, 2015, the claimant did not have an
impairment or combination of impairments which met or
medically equaled the severity of an impairment listed in 20
CFR Part 404, Subpart P, Appendix 1.” (Tr. 17).
Specifically, the ALJ found that Plaintiff did not have any
impairment or combination of impairments which met or
medically equaled listings 1.04, 3.02, 12.02, 12.04, 12.06,
or 112.11. (Tr. 17-23). Plaintiff challenges the findings
made by the ALJ at step two.
three, the ALJ concluded that medical improvement occurred as
of September 30, 2015. (Tr. 23). Plaintiff challenges the
findings made by the ALJ at step three.
four, the ALJ concluded that Plaintiff's medical
improvement is related to the ability to work because it
resulted in an increase in the Plaintiff's residual
functional capacity (hereinafter “RFC”) as of
September 30, 2015. (Tr. 24). Plaintiff challenges the
findings made by the ALJ at step four.
five, the ALJ concluded that no exception to medical
improvement stated in the Act and Social Security regulations
six, the ALJ concluded that the evidence demonstrated that
the claimant has medically determinable severe impairments,
but that Plaintiff does still retain the capacity to function
adequately and to perform the basic activities associated
with work. (Tr. 33). The impairments considered by the ALJ
were Plaintiff's sarcoid disease, depression, anxiety
with panic attacks, Attention Deficit Hyperactivity Disorder,
obesity, and a lumbar disorder. (Tr. 16).
seven, the ALJ made the following RFC determination:
[T]he impairments present on October 9, 2008, (CPD) had
decreased in medical severity to the point where the claimant
has the residual functional capacity to perform light
exertional work as defined in 20 C.F.R. 20 CFR 404.1567(b).
Thus, the claimant can occasionally lift, carry, push or pull
20 pounds at a time, and frequently lift, carry, push or pull
objects weighing up to 10 pounds. The claimant can walk for
no more than about six hours during an eight-hour workday,
stand for no more than about six hours during an eight-hour
work day, and can stand or walk for a total of about six
hours during an eight-hour workday. The claimant can sit for
approximately six hours total during an eight-hour workday.
In addition, the claimant is limited to routine repetitive
work involving 3-4 step tasks and instructions.
(Tr. 25). Plaintiff challenges this RFC determination made by
making this RFC determination, the ALJ, considering the
record as a whole, found that Plaintiff's
“medically determinable impairments could reasonably be
expected to cause some of the alleged symptoms;”
however, the ALJ also noted that Plaintiff's
“statements concerning the intensity, persistence and
limiting effects of these symptoms are not fully persuasive
to the extent they are inconsistent with the medical evidence
of record.” (Tr. 29). Plaintiff challenges this
credibility finding by the ALJ.
on that RFC determination, the ALJ found that Plaintiff was
unable to perform any of his past relevant work. (Tr. 33).
Plaintiff does not challenge this finding.
at step eight, the ALJ concluded that “considering the
claimant's age, education, work experience, and residual
functional capacity based on the impairments present as of
September 30, 2015, the claimant was able to perform a
significant number of jobs in the national economy (20 CFR
404.1560(c) and 404.1566).” (Tr. 34). Relying upon
testimony from independent vocational expert Mitchell J.
Norman, the ALJ specifically found that among the occupations
Plaintiff would be able to perform were bench assembler of
which there were 218, 000 positions in the national economy;
assembler hospital products of which there were 219, 000
positions in the national economy; lens inserter of which
there were 120, 000 positions in the national economy; and
document preparer of which there were 68, 000 positions in
the national economy. (Tr. 35). Plaintiff challenges the
findings made by the ALJ at step eight.
the ALJ found that Plaintiff was no longer under a
disability, as that term is defined by the Social Security
Act, and has not become disabled at any time since his
disability ended on September 30, 2015. (Tr. 36).