United States District Court, D. Minnesota
Dana
W. Duncan, Esq., Duncan Disability Law, S.C., and Jennifer G.
Mrozik, Esq., Hoglund, Chwialkowski & Mrozik, PLLC,
counsel for Plaintiff.
Elvi
D. Jenkins, Esq., United States Attorney's Office,
counsel for Defendant.
MEMORANDUM OPINION AND ORDER
BECKY
R. THORSON, UNITED STATES MAGISTRATE JUDGE
Pursuant
to 42 U.S.C. § 405(g), Plaintiff Jennifer A. seeks
judicial review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying her
application for disability insurance benefits. This matter is
before the Court on the parties' cross-motions for
summary judgment, in accordance with D. Minn. LR 7.2(c)(1).
(Doc. Nos. 18, 20.) For the reasons stated below, the Court
concludes the Administrative Law Judge's decision is
supported by substantial evidence in the record. Therefore,
Plaintiff's Motion for Summary Judgment is denied and
Defendant's Motion for Summary Judgment is granted.
BACKGROUND
I.
Procedural History
On June
11, 2014, Plaintiff filed both a Title II application for
disability insurance benefits (“DIB”) and a Title
XVI application for supplemental security income
(“SSI”). (Tr. 41, 308-20.) In both applications,
Plaintiff alleged a disability onset date of July 1, 2013.
(Id.) The Social Security Administration
(“SSA”) denied her claims initially on February
12, 2015, and upon reconsideration on July 9, 2015. (Tr. 41,
231-35, 240-42, 245-47.) A video hearing was held by an
Administrative Law Judge (“ALJ”) on April 14,
2017. (Tr. 41, 131-59.) The ALJ issued a decision denying
benefits on May 22, 2017. (Tr. 38-55.) The SSA Appeals
Council denied Plaintiff's request for review on December
18, 2017, making the ALJ's decision the final decision of
the Commissioner. (Tr. 3-6); 20 C.F.R. § 404.981.
On
February 16, 2018, Plaintiff timely filed the instant action
seeking judicial review pursuant to 42 U.S.C. § 405(g).
(Doc. No. 1, Compl.) The parties subsequently filed
cross-motions for summary judgment, pursuant to the Local
Rules. (Doc. Nos. 18, 20.) Plaintiff argues the ALJ erred by
not obtaining a new medical opinion after Plaintiff was
hospitalized for depression. (Doc. No. 19, Pl.'s Mem.
Supp. Mot. Summ. J. (“Pl.'s Mem.”) 7-16.)
Plaintiff also argues the ALJ erred in the credibility
finding by failing to point out sufficient inconsistencies
between the Plaintiff's testimony and the record, and by
not conducting a proper assessment of Plaintiff's
subjective complaints of pain under SSR 16-3p, 2017 WL
5180304 (Oct. 25, 2017). (Pl.'s Mem. 16-22.) Defendant
argues that the ALJ properly considered all evidence in the
record, including Plaintiff's testimony, and that denial
of benefits is supported by substantial evidence. (Doc. No.
20, Def.'s Mem. Supp. Mot. Summ. J. (“Def.'s
Mem.”) 6-18.)
II.
Factual Background
Plaintiff
was forty-five years old at the time of her alleged onset
date of July 1, 2013. (Tr. 54.) She lives in an apartment on
her own in Winona. (Tr. 136-37.) She has a high school
education as well as college associates degrees in
cosmetology and as a medical secretary. (Tr. 139, 621.)
Plaintiff has worked in a variety of human resource
positions, both for private companies and for the State of
Minnesota. (Tr. 141-42.) She has worked approximately fifteen
jobs, the longest of which lasted about three years. (Tr.
321, 488, 621.) Plaintiff suffers a variety of conditions,
including rheumatoid arthritis, gastro-intestinal disorders,
fibromyalgia, depression, and anxiety. (Tr. 43-44, 135.) Due
to her conditions, Plaintiff cut down to part-time work in
January 2013. (Tr. 135, 580.) She continued to work as a
human resource generalist at Watkins, Inc., until she was
terminated in July 2013 after using all her medical leave.
(Tr. 135.) Plaintiff testified she has not been able to find
work since. (Tr. 145.)
Plaintiff
reports that she has struggled with depression and anxiety
since age thirty, but that it began worsening in 2012. (Tr.
49, 718, 880.) In December 2012, she was diagnosed with
anxiety with depression by her primary care physician, Carol
Burgmeier, CNP, who continued to treat her. (Tr. 588.) In May
2013, Plaintiff presented for worsening depression, and Nurse
Burgmeier increased her Effexor prescription. (Tr. 570). In
2014, Plaintiff presented regularly for depression and also
sought counseling from Counseling Associates, LLC. (Tr. 169,
599-608.) In September 2014, Nurse Burgmeier switched
Plaintiff from Effexor XR to Remeron for her depression. (Tr.
696.) On October 10, 2014, Plaintiff underwent a
psychological examination by Dr. Richard Cocker, who
diagnosed her with somatic symptom disorder with comorbid
symptoms of depression and anxiety, history of unspecified
alcohol-related disorder, and dependent disorder. (Tr. 49,
623-24.) He also assigned her a global assessment of
functioning (“GAF”) score of 48 in the continuum
of mental health illness. (Id.) That same month,
state agency psychological consultant Ken Lovko, Ph.D,
reviewed the record, including Dr. Cocker's report, and
recommended a finding of not-disabled. (Tr. 163-94.)
In
early 2015, Plaintiff continued to try different medications
to manage her depression and anxiety. In January 2015, Nurse
Burgmeier increased Plaintiff's Remeron prescription and
added Prozac, but Plaintiff remained “angry,
frustrated, depressed” and reported finding “no
benefit” from them. (Tr. 691, 694, 721.) In March 2015,
Dr. Dare switched Plaintiff's depression medication from
Remeron and Prozac to Cymbalta, and her anxiety medication
from alprazolam to clonazepam, but things remained
“about the same” at her April follow-up. (Tr.
722, 765.) In May 2015, Plaintiff significantly worsened, and
Dr. Dare offered in-patient hospitalization because of her
“level of distress and passive death-wish.” (Tr.
763.) Dr. Dare observed that her dramatic mood-turn three
weeks earlier corresponded to her running out of clonazepam,
which he opined “likely had something to do with
that.” (Tr. 50, 761-63.) Plaintiff was admitted to
Generose 3 West on May 30, 2015, for “severe depression
in context of active, refractory rheumatoid arthritis.”
(Tr. 743.) She noted that her depression worsened since she
increased the regularity of her cannabis use.[1] (Tr. 751.) After
ten days, she was discharged in “improved
condition” with no suicidal thoughts. (Tr. 50, 761.)
On June
16, 2015, state agency psychologist Mark Berkowitz, Psy.D.,
reviewed Plaintiff's file at the reconsideration level
and recommended a finding of not-disabled. (Tr. 52, 195-226.)
However, his evidence summary indicates that he only
considered the record up through Dr. Cocker's examination
in October 2014. (Tr. 207, 223.)
Plaintiff
continued to present for depression medication management for
the remainder of 2015 and throughout 2016. (Tr. 932, 786,
791, 795, 799, 803, 807, 827, 845, 959, 871, 880, 892.) Her
mood fluctuated during this time, ranging from
“progressively worsening” to “[n]ot much
has changed” and “somewhat better.” (Tr.
791, 807, 982.) Her “passive suicidal ideation”
was reported returning on two occasions. (Tr. 830, 871.)
III.
The ALJ's Findings and Decision
In his
decision dated May 22, 2017, the ALJ denied Plaintiff's
applications for DIB and SSI, finding Plaintiff not disabled
under the Social Security Act. (Tr. 42.) The ALJ proceeded
through the five-step evaluation process provided in the
social security regulations. See 20 C.F.R. §
404.1520(a)(4). These steps require an ALJ to determine (1)
whether the claimant is presently engaged in
“substantial gainful activity”; (2) whether the
claimant is severely impaired; (3) whether the claimant's
impairment meets or equals a presumptively disabling
impairment listed in the regulations; (4) whether the
claimant can perform past relevant work; and (5) whether the
claimant can perform any other job with sufficient numbers in
the national economy. 20 C.F.R. § 404.1520(a)(4)(i)-(v).
At step
one, the ALJ found that the Plaintiff had not engaged in
substantial gainful activity since July 1, 2013, the alleged
onset date. (Tr. 43.) At step two, the ALJ determined that
Plaintiff had the following severe impairments: rheumatoid
arthritis, depression, anxiety, personality disorders,
disorders of the gastrointestinal system, and asthma.
(Id.) She also has the following non-severe
impairments: cannabis use disorder, degenerative disc
disease, headaches, somatic symptom disorder, and
fibromyalgia. (Tr. 44.)
At step
three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments 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.) When examining Plaintiff's physical
impairments, the ALJ specifically considered listings 3.03
(asthma), 5.06 (inflammatory bowel disease), and 14.09
(inflammatory arthritis). (Id.) The ALJ found the
evidence did not meet the criteria of the above listings.
(Id.) When examining Plaintiff's cognitive
impairments, the ALJ specifically reviewed listings 12.04
(depressive, bipolar and related disorders), 12.06 (anxiety
and obsessive-compulsive disorders), and 12.08 (personality
and impulse-control disorders). (Id.) The ALJ
explained that in order to meet the “paragraph B”
criteria, a claimant must have mental impairments resulting
in at least one extreme or two marked limitations in the
following areas: understanding, remembering, or applying
information; interacting with others; concentrating,
persisting, or maintaining pace; or adapting or managing
oneself, pursuant to 20 C.F.R. § 1520a. (Tr. 44-45.) The
ALJ found that Plaintiff had only “moderate”
limitations in each of these areas. (Tr. 45.)
Specifically,
as to the first category-understanding, remembering, or
applying information-the ALJ noted that Plaintiff has average
intelligence, and while she has an anxious and depressed
mood, her thought process was consistently linear and goal
directed, and her cognition and memory were grossly intact.
(Tr. 45, 762-63, 765-66, 788-89, 797, 801, 805, 808, 830,
847, 874, 895.) Although Plaintiff testified that her
short-term memory is “horrible, ” the ALJ found
this side effect to be less severe than alleged because there
is no record of Plaintiff addressing this concern with any
medical provider. (Tr. 45.)
As to
the second category-interacting with others-the ALJ
considered Plaintiff's testimony that she has a boyfriend
and friends. (Tr. 45.) The ALJ acknowledged there is
“some evidence” that Plaintiff has interpersonal
conflicts with some family members, but also noted that
Plaintiff nevertheless attends medical appointments without
incident and is often described as cooperative and/or
pleasant by medical providers. (Id.) There also is
no evidence of assaultive behavior, violent outbursts, or
aggression. (Id.)
As to
the third category-concentrating, persisting, or maintaining
pace-the ALJ considered Plaintiff's testimony of having
difficulty in concentrating. Against this, he considered the
fact that she lives alone and drives. (Tr. 45, 137-39.) He
also noted that despite an anxious and depressed mood,
Plaintiff was consistently appropriately groomed; her thought
process was linear and goal-directed; her cognition was
grossly intact; and she was able to engage in appropriate
conversation at appointments. (Tr. 45, 762-63, 765-66,
788-89, 797, 801, 805, 808, 830, 847, 874, 895.)
As to
the fourth category-adapting or managing oneself-the ALJ
considered that Plaintiff has “some difficulty”
regulating her emotions, but noted that she has not
“required or received intensive outpatient mental
health services, ” and that “there is no evidence
of assaultive behavior, violent outburst, or
aggression.” (Tr. 45.)
Since
Plaintiff only reached the level of “moderate”
limitations in each of these categories, the ALJ found that
Plaintiff's impairments do meet or equal a
listing.[2](Tr. 45.)
Before
moving on to step four, the ALJ determined that Plaintiff has
the residual functional capacity (“RFC”) to
perform “light work, ” as defined in 20 C.F.R.
§ 404.1567(b) and 20 C.F.R. § 416.967(b), with the
following limitations:
She can frequently reach overhead to the right; frequently
handle and finger bilaterally; occasionally climb ramps and
stairs and never climb ladders, ropes, or scaffolds;
occasionally balance, stoop, kneel, crouch, and crawl;
occasionally work at unprotected heights and near moving
mechanical parts; never engage in commercial driving; can no
more than frequently tolerate humidity, wetness, dust, odors,
fumes, pulmonary irritants, extreme cold, and extreme heat;
can perform simple, routine tasks; can have occasional
interactions with supervisors, co-workers and the public; and
she requires the use of a cane for ambulation.
(Tr. 46.)
When
determining Plaintiff's RFC, the ALJ analyzed
Plaintiff's symptoms using a two-step process, in which
an ALJ determines (1) whether a claimant's physical or
mental impairment(s) could reasonably be expected to produce
the symptoms, and (2) to what extent they limit the
claimant's functioning. (Tr. 46.) The ALJ found
Plaintiff's medically determinable impairments could
“reasonably be expected to cause the alleged symptoms,
” but that Plaintiff's statements about the
“intensity, persistence and limiting effects” of
her symptoms were not “entirely consistent with the
medical evidence and other evidence in the record.”
(Tr. 47.)
In
making this determination, the ALJ gave “considerable
weight” to the opinions of state agency medical
consultants Charles Grant, M.D., and Kimberlee Terry, M.D.,
as to Plaintiff's physical capabilities. (Tr. 52.) The
ALJ found their opinions “generally consistent with the
record as a whole[, ] including objective medical evidence
and clinical findings on examination.” (Id.)
The ALJ
also relied on the opinions of state agency psychological
consultants. He gave “great weight” to the
opinion of Dr. Ken Lovko and “less weight” to Dr.
Mark Berkowitz. (Tr. 52.) Dr. Lovko reviewed Plaintiff's
case file on October 27, 2014. (Id.) He opined that
Plaintiff can “understand, remember, and carry-out
unskilled tasks without special considerations in many work
environments.” (Id.) He also stated that
Plaintiff can “relate on at least a superficial and
ongoing basis” with co-workers and supervisors,
“attend to tasks for sufficient periods of time”
to complete them, and “manage the stresses involved
with unskilled work.” (Tr. ...