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Scott M. v. Berryhill

United States District Court, D. Minnesota

February 12, 2019

Scott M., Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Defendant.



         This matter is before the Court on Plaintiff Scott M.'s (“Plaintiff”) Motion for Summary Judgment (Dkt. No. 11) (“Motion”) and Defendant Acting Commissioner of Social Security Nancy A. Berryhill's (“Defendant”) Cross Motion for Summary Judgment (Dkt. No. 15) (“Cross Motion”). Plaintiff filed this case seeking judicial review of a final decision by Defendant denying his application for widower insurance benefits. He specifically challenges the Administrative Law Judge's (“ALJ”) evaluation of Plaintiff's treating physician assistant's opinion and the assessment of his residual functional capacity (“RFC”). For the reasons stated below, Plaintiff's Motion is denied, and Defendant's Cross-Motion is granted

         I. BACKGROUND

         Plaintiff filed an application for Widower's Insurance Benefits on May 19, 2016, alleging disability beginning June 1, 1995.[1] (R. 168-69.)[2] His application was denied initially (R. 97) and on reconsideration (R. 104). Plaintiff requested a hearing before an ALJ, which was held on June 19, 2017 before ALJ Brenda Rosten. (R. 15.) The ALJ issued an unfavorable decision on July 6, 2017. (R. 28.) 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 June 1, 1995. (R. 18.)

         At step two, the ALJ determined that Plaintiff had the following severe impairments: degenerative joint disease, right hip; status post left hip replacement; remote history of right tibia/fibula (tib/fib) fracture and surgical lengthening of the common digital flex or tendon; obesity (with body mass index (BMI) of 42.3 about the filing date and 42.73 recently); status partial right knee partial medial meniscectomy and synovectomy; fibromyalgia; and depression. (R. 18.) The ALJ determined that Plaintiff's other physical impairments were not severe, including obstructive sleep apnea, diabetes, and hypertension. (R. 18.) The ALJ noted that each of these impairments are not severe as they have not been shown to more than minimally interfere with Plaintiff's ability to engage in basic work activities. (R. 18.)

         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. (R. 19.) The ALJ considered the “paragraph B” criteria as to Plaintiff's mental impairment, namely depression, but determined that Plaintiff “has no greater than mild limitation in understanding, remembering, or applying information, or in adapting or managing himself.” (R. 19.) The ALJ determined that Plaintiff had no greater than moderate limitation in interacting with others and in concentrating, persisting, and maintaining pace. (R. 19.) Because Plaintiff's mental impairment does not cause at least two “marked” limitations or one “extreme” limitation, the ALJ opined that the “paragraph B” criteria were not satisfied. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00. The ALJ also determined that the “paragraph C” criteria were not met. Id. (“To satisfy the paragraph C criteria, your mental disorder must be ‘serious and persistent'; that is, there must be a medically documented history of the existence of the disorder over a period of at least 2 years, and evidence that satisfies the criteria in both C1 and C2 (see 12.00G).”).

         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), with the following limitations:

The claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently. The claimant can sit for about 6 hours in an 8-hour workday, but would need an opportunity to stand up and/or change position at his workstation for approximately 2-3 minutes after sitting for an hour. After using that opportunity, the claimant could return again to a seated position and continue in that fashion for the remainder of the 8-hour workday. The claimant can stand and/or walk combined for about 4 hours in an 8-hour workday, but would need to avoid uneven terrain. The claimant can occasionally use foot controls with his right lower extremity. The claimant can never climb ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs using a handrail. The claimant can occasionally balance, stoop, and crouch, and rarely (defined as 1 to 5 percent of a workday) kneel and crawl. The claimant should have no exposure to work around hazards, such as unprotected heights and fast and dangerous moving machinery. Mentally, the claimant is limited to simple tasks. The claimant can maintain concentration, persistence and pace for 2-hour work segments. The claimant is limited [to] brief superficial contact with co-workers and the general public.

(R. 19-20.) After determining Plaintiff's RFC, since Plaintiff has no past relevant work, the ALJ moved on to step five.

         At step five, the ALJ asked a vocational expert (“VE”) whether jobs exist in the national economy for a hypothetical individual with Plaintiff's RFC, age, education, and work experience. (R. 61-63.) The VE testified that there were such jobs in the national economy, including an information clerk, a document scanner, and a document shredder. (R. 27, 63.) Based on the VE's testimony, the ALJ determined that Plaintiff is not disabled. (R. 27-28.)

         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. See 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. See Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005).


         Plaintiff argues that the ALJ failed to give sufficient weight to the opinion of Plaintiff's rheumatology provider, Jacquelyn Steckler, PA-C (“PA Steckler”), who completed a Medical Source Statement (“MSS”) on April 18, 2017. (Dkt. No. 12 ...

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