JOHN A. ROSS, District Judge.
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of Social Security's final decision denying Jacqueline Fem Lipp's ("Lipp") application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.
On July 31, 2012, Lipp filed an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401,
Lipp filed this appeal on October 5, 2015 (Doc. 1). The Commissioner filed an Answer (Doc. 10). Lipp filed a Brief in Support of her Complaint (Doc. 12), the Commissioner filed a Brief in Support of the Answer (Doc. 16), and Lipp filed a Reply Brief (Doc. 17).
The following is a summary of the relevant evidence before the ALJ.
At the administrative hearing, Lipp's counsel indicated that he had requested medical records from a pain management clinic, but had not yet received them. At counsel's request, the ALJ agreed to keep the record open for thirty days to allow counsel to acquire the records (Tr. 22-23). The ALJ then heard testimony from Lipp and Dr. Magrowski, a vocational expert.
Lipp was 61 years old at the time of the hearing and living with her husband and 13-yearold grandson (Tr. 24-25). She completed the tenth grade and has a GED; she has no additional professional or vocational training (MJ. She testified that she last worked full-time in 1998 as a machine operator at a factory (Tr. 25-26). In 2000, she worked as a part-time cook at a daycare for one week before the business closed (Tr. 27-28).
It was Lipp's testimony that her shoulder, neck, and back pain affected her ability to work as of December 31, 2003 (Tr. 29-30, 39). According to Lipp, prior to December 31, 2003, her doctor had not given her any specific limitations, and on a typical day, she would have done housework-including cooking, cleaning, and grocery shopping-but she did not have any other activities (Tr. 30-31). It was Lipp's testimony that before December 31, 2003, "mainly [she] did a little at a time to get through some of the pain" (Tr. 30).
Lipp also testified that she first reported her back pain to Dr. Kraenzle, her primary care physician, having suffered for "a long, long time before it got to the point where [ibuprofen] wasn't helping anymore." (Tr. 29-30, 35). After taking an x-ray, Dr. Kraenzle recommended that Lipp try physical therapy (Tr. 35-36). Lipp testified that she participated in physical therapy for five or six weeks, but it made her symptoms worse; she "got to the point where [she] couldn't even make it, drive home from the physical therapist, [she] was in so much pain" (Tr. 36-37). Dr. Kraenzle then sent Lipp to a neurosurgeon. The neurosurgeon referred her to a pain management clinic, where she underwent a series of injections. The injections did not help her pain, and in December 2004, Lipp had her first surgery (Tr. 37-40). According to Lipp, the first surgery "didn't fix the problem" and "didn't help anything" (Tr. 33, 40). Lipp testified that, after her first surgery, she continued to suffer from back pain, leg pains, and "shooting pains" down her legs; that she was unable to put on her own socks; and that her husband "was more or less dressing [her]" (Tr. 33).
As of the May 15, 2014 hearing, none of Lipp's treating physicians had limited her activities, other than instructing her to "do what you can do." (Tr. 29). She testified that she still experiences back pain and "shooting pains in [her] bottom" (Tr. 40). Lipp is able to clean her house, although it usually takes her all day, working an hour or so at a time (Tr. 41). Lipp also testified that her pain continues to prevent her from performing a job, even if a job allowed her to sit intermittently and stand intermittently (Tr. 42). Lipp had stopped taking Vicodin a few weeks prior to the May 15, 2014 hearing, but was still taking muscle relaxers-which cause her fatigue but no other side effects-because her neck and shoulders were bothering her (Tr. 42-43).
Dr. Magrowski classified Lipp's past work as "a medium job" and "unskilled with an SVP of2" (Tr. 45).
The ALJ summarized the medical records that had been submitted in evidence as of the date of the ALJ's decision at Tr. 14-15. Relevant medical records are discussed as part of the analysis.
On July 15, 2014, or sixty-one days after the hearing, the ALJ issued a decision denying Lipp's claim for benefits (Tr. 7-19). The ALJ first determined that Lipp met the insured status requirements of the Social Security Act through December 31, 2003 (Tr. 12). The ALJ then concluded that Lipp had not engaged in substantial gainful employment during the period from October 1, 1998, the alleged onset date of disability, through December 31, 2003, her date last insured (Id.). The ALJ next found that, as of her date last insured, Lipp had the medically determinable impairments of hypertension, low back pain, and hyperlipidemia; but that, at that time, no impairment or combination of impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 12-14). Thus, the ALJ concluded that Lipp had not been under a disability, as that term is defined in the Social Security Act, at any time between her alleged onset date through her date last insured (Tr. 16).
The Social Security Act defines as disabled a person who is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A);
Under the Social Security Act, the Commissioner has established a five-step process for determining whether a person is disabled. 20 C.F.R. §§ 416.920(a), 404.1520(a). "If a claimant fails to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is determined to be not disabled."
Third, the claimant must establish that his or her impairment meets or equals an impairment listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is per se disabled without consideration of the claimant's age, education, or work history.
Before considering step four, the ALJ must determine the claimant's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as ""the most a claimant can do despite [her] limitations."
At step five, the ALJ considers the claimant's RFC, age, education, and work experience to see if the claimant can make an adjustment to other work in the national economy. 20 C.F.R. §§ 416.920(a)(4)(v). If the claimant cannot make an adjustment to other work, then she will be found to be disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v). Through step four, the burden remains with the claimant to prove that she is disabled.
The Court's role on judicial review is to determine whether the ALJ's findings are supported by substantial evidence in the record as a whole.
To determine whether the ALJ's final decision is supported by substantial evidence, the Court is required to review the administrative record as a whole and to consider:
Brand v. Sec'y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
In her appeal of the Commissioner's decision, Lipp argues that the ALJ erred in finding that she was not disabled as of her date last insured (Doc. 12). According to Plaintiff, her testimony and the medical evidence of record were sufficient to establish that her back pain was disabling as of December 31, 2003. Lipp also argues that the ALJ erred by denying her claim without requesting her records from the pain management clinic, which she asserts would have been relevant to the severity of her pain and the extent of her limitations as of her date last insured (MJ. The Commissioner urges affirmance, arguing that the ALJ's decision is supported by substantial evidence, and that the duty to request the records from the pain management clinic rested with Lipp, not the ALJ (Doc. 16). In reply, Lipp reiterates her argument that the evidence of record is sufficient to support a finding that she was disabled as of her date last insured (Doc. 17). It is undisputed that Lipp's date last insured was December 31, 2003, and that, to be entitled to benefits, she must establish that she was disabled prior to that date (Docs. 12 at 11; 16 at 3).
The medical records reflect that, between October 1997 and September 2004, Lipp was treated by Dr. Kraenzle, her primary care provider, on several occasions (Tr. 213-229). Notably, Lipp visited Dr. Kraenzle in August 2000 for the purpose of a pre-employment physical, and he noted that she was in good physical health (Tr. 224). Lipp also saw Dr. Kraenzle on January 26, 2004, less than one month after her date last insured, complaining of sinus drainage and headache, but not back pain (Tr. 216).
It is undisputed that Lipp did not report her lower back pain to Dr. Kraenzle until June 17, 2004, when she reported "recurrent right lower back [pain] secondary to increased activities." (Tr. 215; Docs. 16.2 at 4; 17.1 at 2).
On December 15, 2004, Lipp underwent her first back surgery (Tr. 243-46). At that time, her surgeon, Dr. Kong-Woo Peter Yoon, noted that Lipp had a history of lower back pain with bilateral leg radiation, that her right side was worse than her left, that a myelogram revealed foraminal stenosis on her right side, and that there was "some mild stenosis on the left side because of diffuse disc bulge at L4-5." (Tr. 243). Dr. Yoon performed a second surgery in January 2006, a third surgery in May 2008, and a fourth surgery in November 2013 (Tr. 239-252).
The ALJ found that Lipp's lower back pain was a medically determinable impairment as of her date last insured, but that, as of that time, she did not have an impairment or combination of impairments that significantly limited her ability to perform basic work-related activities for 12 consecutive months (Tr. 12-15). More specifically, the ALJ determined that Lipp's lower back pain could have been expected to produce the symptoms she alleged, but that her testimony as to the intensity, persistence and limiting effects of her symptoms was not entirely credible (Tr. 14). The ALJ found that Lipp's medical history was not consistent with her allegation of severe, disabling back pain (Tr. 15). The ALJ noted that Lipp's medical records showed that-although she had visited Dr. Kraenzle several times between October 1997 and September 2004-she did not report any back or neck pain until June 17, 2004, well after her date last insured (Tr. 14-15). The ALJ further noted that no treating or examining physician had ever placed any limitations on Lipp's activities, opined that she was disabled, or indicated that there is a medical reason for why her activities should be as limited as she alleged (Id.). The ALJ also noted that Lipp had maintained employment after her alleged onset date (for a week, as a part-time cook at a daycare), and that she had only stopped working because the daycare closed, not for any medical reason (MJ. The ALJ concluded that Lipp's allegations of total disability were not supported by the weight of the evidence and were not credible (
Initially, the Court is not persuaded by Lipp's argument that the ALJ erred by failing to request her records from the pain management clinic. While an ALJ has an independent duty to fully and fairly develop the administrative record, that duty is not endless, and an ALJ is not obligated to function as "claimant's substitute counsel."
In Hinchey, the ALJ agreed to keep the record open after the administrative hearing to allow the claimant time to acquire additional evidence regarding her condition as of her date last insured, which had expired ten years prior to the hearing; and claimant's counsel represented to the ALJ that he would get the additional evidence.
Here, during the administrative hearing, Lipp's counsel informed the ALJ that he had already requested her records from the pain clinic, and the ALJ granted counsel's request that the record be kept open for thirty days to allow counsel time to obtain the records and to supplement the record accordingly. Lipp did not submit her pain clinic records to the ALJ within the time she was allowed (or the next thirty-one days that passed before the ALJ issued a decision); she did not seek to supplement the record before the Appeals Council after the ALJ denied her claim; and she also has not submitted her pain clinic records to this Court. Moreover, Lipp has provided no explanation for why she has not yet acquired her records from the pain management clinic, or why she was unable to do so before the administrative record closed. Thus, she has failed to show good cause for her failure to submit her pain clinic records during the pendency of her administrative proceeding. Also, in light of her failure to submit her pain clinic records to this Court for review, Lipp has not shown that the additional evidence is material, i.e., that it would have influenced the ALJ's conclusion that she was not disabled prior to December 31, 2003.
Upon careful review of the record, the Court further concludes that the ALJ's decision is supported by substantial evidence.
For the foregoing reasons, the Court finds there is substantial evidence in the record to support the ALJ's decision.
Accordingly,
