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Timothy M. v. Berryhill

United States District Court, D. Minnesota

January 22, 2019

Timothy M., [1] Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, [2] Defendant.

          REPORT AND RECOMMENDATION

          LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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. § 405(g).

         Both 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 GRANTED.

         I. Procedural History

         On January 24, 2006, Plaintiff filed a Title II application for a period of disability and disability benefits. (Tr. 229-233).[3] 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. (Tr. 157).

         Administrative 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).

         Plaintiff 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.

         On 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 submissions.

         II. Standards of Review

         A. Administrative Law Judge's Eight-Step Analysis

         If a 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.

         The SSA 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 steps are:

(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).

         “To 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] impairment(s).

Wilson, 2011 WL 903084, at *11 (quoting 20 CFR § 416.994(b)(1)(I)).

         A “[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).

         B. Appeals Council Review

         If the 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).

         C. Judicial Review

         Judicial 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).

         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 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 Cir. 1993).

         After 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 omitted).

         The 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).

         III. Decision Under Review

         In this matter, Administrative Law Judge Roger W. Thomas (“ALJ”) made the following determinations during the eight-step disability evaluation process:

         At step 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.

         At step 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.

         At step 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.

         At step five, the ALJ concluded that no exception to medical improvement stated in the Act and Social Security regulations applies.[4]

         At step 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).

         At step 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 the ALJ.

         In 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.

         Based 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.

         Finally, 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.

         Accordingly, 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).

         IV. ...


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