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Jennifer A. v. Berryhill

United States District Court, D. Minnesota

February 12, 2019

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

          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.



         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.


         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. ...

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