JON STUART SCOLES, Magistrate Judge.
This matter comes before the Court on the Complaint (docket number 3) filed by Plaintiff Elizabeth Corwin on January 5, 2016, requesting judicial review of the Social Security Commissioner's decision to deny her application for Title II disability insurance benefits. Corwin asks the Court to reverse the decision of the Social Security Commissioner ("Commissioner") and order the Commissioner to provide her disability insurance benefits. In the alternative, Corwin requests the Court to remand this matter for further proceedings.
Corwin filed her application for disability benefits on December 28, 2012, alleging disability due to left shoulder problems, cervical spine problems, and mood disorders.
On January 5, 2016, Corwin filed the instant action for judicial review. A briefing schedule was entered on March 28, 2016. On June 28, 2016, Corwin filed a brief arguing there is no substantial evidence in the record to support the ALJ's finding that she is not disabled and she is functionally capable of performing other work that exists in significant numbers in the national economy. On July 25, 2016, the Commissioner filed a responsive brief arguing that the ALJ's decision was correct and asking the Court to affirm the ALJ's decision. On August 9, 2016, Corwin filed a reply brief. On August 10, 2016, the Commissioner filed a motion to strike Corwin's reply brief because it allegedly improperly added new evidence. See docket number 17. Corwin did not file a response to the motion, and on August 30, 2016, the Court granted the Commissioner's motion, striking Corwin's reply brief filed on August 9, 2016, in accordance with Local Rule 7.f. See docket number 18. Also, on August 9, 2016, Judge Leonard T. Strand referred this matter to a magistrate judge for issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Additionally, on June 14, 2016, both parties filed together a joint statement of facts addressing the case's procedural history, testimony from the administrative hearing, and Corwin's medical history. See docket number 12. The parties' joint statement of facts is hereby incorporated by reference. Further discussion of pertinent facts will be addressed, as necessary, in the Court's consideration of this matter.
The Commissioner's final determination not to award disability insurance benefits following an administrative hearing is subject to judicial review. 42 U.S.C. § 405(g). The Court has the authority to "enter . . . a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing." Id. The Commissioner's final determination not to award SSI benefits is subject to judicial review to the same extent as provided in 42 U.S.C. § 405(g). 42 U.S.C. § 1383(c)(3).
The Court "`must affirm the Commissioner's decision if it is supported by substantial evidence on the record as a whole.'" Bernard v. Colvin, 774 F.3d 482, 486 (8th Cir. 2014). Substantial evidence is defined as less than a preponderance of the evidence, but is relevant evidence a "`reasonable mind would find adequate to support the commissioner's conclusion.'" Grable v. Colvin, 770 F.3d 1196, 1201 (8th Cir. 2014). In determining whether the ALJ's decision meets this standard, the Court considers "all of the evidence that was before the ALJ, but it [does] not re-weigh the evidence." Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (citation omitted). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive. . ." 42 U.S.C. § 405(g). The Court not only considers the evidence which supports the ALJ's decision, but also the evidence that detracts from his or her decision. Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012)
In Culbertson v. Shalala, the Eighth Circuit Court of Appeals explained this standard as follows:
30 F.3d 934, 939 (8th Cir. 1994). In Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011), the Eighth Circuit further explained that a court "`will not disturb the denial of benefits so long as the ALJ's decision falls within the available `zone of choice.'" "`An ALJ's decision is not outside that zone of choice simply because [a court] might have reached a different conclusion had [the court] been the initial finder of fact.'" Id. Therefore, "even if inconsistent conclusions may be drawn from the evidence, the agency's decision will be upheld if it is supported by substantial evidence on the record as a whole." Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). See also Cline v. Colvin, 771 F.3d 1098, 1102 (8th Cir. 2014) ("`As long as substantial evidence in the record supports the Commissioner's decision, [the court] may not reverse it because substantial evidence exists in the record that would have supported a contrary outcome, or because [the court] would have decided the case differently.' Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).").
Corwin was born in 1967. She is a high school graduate and attended one year of college. In the past, Corwin worked as an office nurse and a licensed practical nurse.
At the administrative hearing, the ALJ inquired why Corwin stopped working in November 2012. Corwin explained:
(Administrative Record at 97.) Corwin also testified that she struggled with pain and fatigue after working 5-6 hours during a shift. According to Corwin, at the end of her shift, the pain and fatigue made it difficult for her to concentrate on the paperwork and charting she needed to complete at the end of her workday. Specifically, she stated "I had trouble. Trouble concentrating. I was beginning to make some medication errors and it frustrated me. I was forgetting things that needed to be remembered at work, you know, such as treatments and things."
Approximately 10 months after she stopped working, Corwin had neck surgery. She testified that the surgery "resolved" her neck issues, but in January 2013, she fell in her house and started having significant left shoulder problems. Similar to her neck pain, Corwin indicated that her shoulder pain also affects her concentration and memory. Corwin also asserted she has some difficulty with depression and sleeping. Lastly, Corwin stated she is not able to perform most household duties. For example, she may start a load of laundry, but her husband or teenage son usually unloads the washer, places the clothes in the dryer, and later folds and puts away the clothes.
At the hearing, the ALJ provided vocational expert Roger Marquardt with a hypothetical for an individual who:
(Administrative Record at 112.) The vocational expert testified that under such limitations, Corwin was unable to perform her past work, but could perform the following jobs: (1) labeler or marker, (2) office helper, and (3) sales attendant. The ALJ provided the vocational expert with a second hypothetical that was identical to the first hypothetical, except the individual would be limited to sedentary work. The vocational expert testified under such limitations, Corwin could perform the following jobs: (1) order clerk, (2) addresser, and (3) escort vehicle driver.
On April 16, 2013, Corwin was referred by Disability Determination Services to Dr. Lorne A. Johnson, Psy.D., for a psychological evaluation. Dr. Johnson noted Corwin's medical history includes fibromyalgia, migraine headaches, and neck, back, and shoulder pain. Dr. Johnson also noted Corwin started therapy for depression and pain in September 2012. Dr. Johnson described Corwin's daily activities as follows:
(Administrative Record at 510.) Dr. Johnson also noted Corwin: (1) does not perform yard work; (2) does not mop floors; (3) cannot scrub the bathroom; (4) cannot vacuum floors; (5) does not do dishes; (6) makes prepared food like frozen pizzas on a minimal basis; (7) does laundry, but it often increases her pain; and (8) can only drive short distances. On the mental status examination, Dr. Johnson determined:
(Administrative Record at 511.) Cognitive test results showed "mild" cognitive impairment. Dr. Johnson diagnosed Corwin with major depressive disorder and generalized anxiety disorder. Dr. Johnson concluded:
(Administrative Record at 511.) Based on his conclusions, Dr. Johnson offered the following opinions on Corwin's functional abilities:
(Administrative Record at 511.)
The ALJ determined Corwin was not disabled. In making this determination, the ALJ was required to complete the five-step sequential test provided in the social security regulations. See 20 C.F.R. § 404.1520(a)-(g); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); Moore v. Colvin, 769 F.3d 987, 988 (8th Cir. 2014). The five steps an ALJ must consider are:
Hill v. Colvin, 753 F.3d 798, 800 (8th Cir. 2014); see also 20 C.F.R. § 404.1520(a)-(g). "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." Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006).
In considering the steps in the five-step process, the ALJ:
Kluesner v. Astrue, 607 F.3d 533, 537 (8th Cir. 2010). At the fourth step, the claimant "`bears the burden of demonstrating an inability to return to [his] or her past relevant work.'" Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010). If the claimant meets this burden, the burden shifts to the Commissioner at step five to demonstrate that "`the claimant has the physical residual functional capacity to perform a significant number of other jobs in the national economy that are consistent with [his or] her impairments and vocational factors such as age, education, and work experience.'" Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir. 2012). The RFC is the most an individual can do despite the combined effect of all of his or her credible limitations. 20 C.F.R. § 404.1545(a); Toland v. Colvin, 761 F.3d 931, 935 (8th Cir. 2014). The ALJ bears the responsibility for determining "`a claimant's RFC based on all the relevant evidence, including the medical records, observations of treating physicians and others, and an individual's own description of [his or] her limitations.'" Myers v. Colvin, 721 F.3d 521, 527 (8th Cir. 2013); 20 C.F.R. § 404.1545.
The ALJ applied the first step of the analysis and determined Corwin had not engaged in substantial gainful activity since November 1, 2012. At the second step, the ALJ concluded from the medical evidence Corwin has the following severe impairments: mood disorder, anxiety disorder, left shoulder degenerative joint disease, and degenerative disc disease of the cervical spine with surgery. At the third step, the ALJ found Corwin did not have an impairment or combination of impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. At the fourth step, the ALJ determined Corwin's RFC as follows:
(Administrative Record at 78.) Also at the fourth step, the ALJ determined Corwin is unable to perform her past relevant work. At the fifth step, the ALJ determined based on her age, education, previous work experience, and RFC, Corwin could work at jobs that exist in significant numbers in the national economy. Therefore, the ALJ concluded Corwin was not disabled.
Corwin argues the ALJ erred in three respects. First, Corwin argues the ALJ failed to properly evaluate her subjective allegations of pain and disability. Second, Corwin argues the ALJ failed to properly evaluate the opinions of Dr. Johnson, a consultative examining source. Lastly, Corwin argues that the ALJ's RFC assessment is flawed and not supported by substantial evidence.
Corwin argues that the ALJ failed to properly evaluate her subjective allegations of pain and disability. Corwin maintains that the ALJ's credibility determination is not supported by substantial evidence. The Commissioner argues that the ALJ properly considered Corwin's testimony, and properly evaluated the credibility of her subjective complaints.
When assessing a claimant's credibility, "[t]he [ALJ] must give full consideration to all the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as: (1) the claimant's daily activities; (2) the duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; [and] (5) functional restrictions." Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). An ALJ should also consider a "a claimant's work history and the absence of objective medical evidence to support the claimant's complaints[.]" Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008) (citing Wheeler v. Apfel, 224 F.3d 891, 895 (8th Cir. 2000)). The ALJ, however, may not disregard a claimant's subjective complaints "`solely because the objective medical evidence does not fully support them.'" Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir. 2012) (quoting Wiese v. Astrue, 552 F.3d 728, 733 (8th Cir. 2009)).
Instead, an ALJ may discount a claimant's subjective complaints "if there are inconsistencies in the record as a whole." Wildman, 596 F.3d at 968; see also Finch, 547 F.3d at 935 (same); Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) ("The ALJ may not discount a claimant's complaints solely because they are not fully supported by the objective medical evidence, but the complaints may be discounted based on inconsistencies in the record as a whole."). If an ALJ discounts a claimant's subjective complaints, he or she is required to "`make an express credibility determination, detailing the reasons for discounting the testimony, setting forth the inconsistencies, and discussing the Polaski factors.'" Renstrom, 680 F.3d at 1066 (quoting Dipple v. Astrue, 601 F.3d 833, 837 (8th Cir. 2010)); see also Ford, 518 F.3d at 982 (An ALJ is "required to `detail the reasons for discrediting the testimony and set forth the inconsistencies found.' Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003)."). Where an ALJ seriously considers, but for good reason explicitly discredits a claimant's subjective complaints, the Court will not disturb the ALJ's credibility determination. Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001) (citing Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996)); see also Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (providing that deference is given to an ALJ when the ALJ explicitly discredits a claimant's testimony and gives good reason for doing so); Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003) ("If an ALJ explicitly discredits the claimant's testimony and gives good reasons for doing so, we will normally defer to the ALJ's credibility determination."). "`The credibility of a claimant's subjective testimony is primarily for the ALJ to decide, not the courts.'" Vossen v. Astrue, 612 F.3d 1011, 1017 (8th Cir. 2010) (quoting Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001)).
In his decision, the ALJ generally determined that:
(Administrative Record at 81-82.) The ALJ further stated, again in general terms, Corwin "experiences some symptoms and limitations; however, the record does not fully support the severity of [her] allegations."
In his decision, the ALJ sets forth the law for making a credibility determination under the Social Security Regulations.
Corwin argues the ALJ failed to properly evaluate the opinions of Dr. Johnson, a consultative examining source. Contrary to the ALJ's understanding that Dr. Johnson was only a consultative examining source, Corwin argues Dr. Johnson was also a treating source. Corwin concedes that neither the ALJ, nor her attorney at the administrative hearing (Natalie Ratzlaff) were aware that Dr. Johnson was also a treating source.
An ALJ is required to evaluate every medical opinion he or she receives from a claimant. 20 C.F.R. § 416.927(c). If the medical opinion is not from a treating source, then the ALJ considers the following factors for determining the weight to be given to the non-treating medical opinion: "(1) examining relationship, (2) treating relationship, (3) supportability, (4) consistency, (5) specialization, and (6) other factors." Wiese, 552 F.3d at 731 (citing 20 C.F.R. §§ 404.1527(d)). "`It is the ALJ's function to resolve conflicts among the opinions of various treating and examining physicians. The ALJ may reject the conclusions of any medical expert, whether hired by the claimant or the government, if they are inconsistent with the record as a whole.'" Wagner, 499 F.3d at 848 (quoting Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001)).
In considering a physician's RFC assessment, an ALJ is not required to give controlling weight to the physician's assessment if it is inconsistent with other substantial evidence in the record. Strongson, 361 F.3d at 1070; see also Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) ("A physician's statement that is `not supported by diagnoses based on objective evidence' will not support a finding of disability. Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003). If the doctor's opinion is `inconsistent with or contrary to the medical evidence as a whole, the ALJ can accord it less weight.' Id."). "If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Social Security Ruling, 96-8p (July 2, 1996).
In his decision, the ALJ thoroughly addressed Dr. Johnson's findings from the psychological evaluation performed on April 16, 2013.
(Administrative Record at 81.)
On one hand, the ALJ's thorough discussion of Dr. Johnson's opinions and reasons for finding inconsistentencies with his GAF score for Corwin, and inconsistencies with his opinions regarding Corwin's ability to interact socially, suggests the ALJ properly evaluated Dr. Johnson's opinions. On the other hand, the ALJ also gave "some" weight to Dr. Johnson's findings regarding her difficulties with concentration, but did not discuss or explain his reasoning further. This is significant because Dr. Johnson also opined Corwin "has a severe deficit in maintaining attention, concentration, and particularly pace."
(Administrative Record at 511.) The ALJ did not address any of these findings. Moreover, these findings are consistent with Corwin's subjective allegations of disability.
Additionally, because I am recommending this matter be remanded for further consideration of Dr. Johnson's opinions, I believe both Corwin's attorney and the ALJ should fully develop the record with regard to Dr. Johnson's treating relationship with Corwin. Based on the disability report contained in the record, it appears Dr. Johnson was not just a consultative examining source, but also a treating source.
Corwin argues the ALJ's RFC assessment is flawed. Specifically, Corwin argues the ALJ's RFC assessment is not supported by substantial evidence. Corwin concludes this matter should be remanded for a new RFC determination based on a fully and fairly developed record.
When an ALJ determines that a claimant is not disabled, he or she concludes that the claimant retains the residual functional capacity to perform a significant number of other jobs in the national economy that are consistent with claimant's impairments and vocational factors such as age, education, and work experience. Beckley, 152 F.3d at 1059. The ALJ is responsible for assessing a claimant's RFC, and his or her assessment must be based on all of the relevant evidence. Guilliams, 393 F.3d at 803; see also Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000) (same). Relevant evidence for determining a claimant's RFC includes "`medical records, observations of treating physicians and others, and an individual's own description of his [or her] limitations.'" Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006) (quoting Strongson, 361 F.3d at 1070). While an ALJ must consider all of the relevant evidence when determining a claimant's RFC, "the RFC is ultimately a medical question that must find at least some support in the medical evidence of record." Casey, 503 F.3d at 697 (citing Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir. 2004)).
Additionally, an ALJ has a duty to develop the record fully and fairly. Cox v. Astrue, 495 F.3d 614, 618 (8th Cir. 2007); Sneed v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004); Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998). Because an administrative hearing is a non-adversarial proceeding, the ALJ must develop the record fully and fairly in order that "`deserving claimants who apply for benefits receive justice.'" Wilcutts, 143 F.3d at 1138 (quoting Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994)); see also Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006) ("A social security hearing is a non-adversarial proceeding, and the ALJ has a duty to fully develop the record."). "There is no bright line rule indicating when the Commissioner has or has not adequately developed the record; rather, such an assessment is made on a case-by-case basis." Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008) (citation omitted).
In section
The scope of review of the Commissioner's final decision is set forth in 42 U.S.C. § 405(g) which provides in pertinent part:
42 U.S.C. § 405(g). The Eighth Circuit Court of Appeals has stated that:
Gavin v. Heckler, 811 F.2d 1195, 1201 (8th Cir. 1987); see also Beeler v. Brown, 833 F.2d 124, 127 (8th Cir. 1987) (finding reversal of denial of benefits was proper where "the total record overwhelmingly supports a finding of disability"); Stephens v. Sec'y of Health, Educ., & Welfare, 603 F.2d 36, 42 (8th Cir. 1979) (explaining that reversal of denial of benefits is justified where no substantial evidence exists to support a finding that the claimant is not disabled). In the present case, the Court concludes that the medical records as a whole do not "overwhelmingly support a finding of disability." Beeler, 833 F.2d at 127. Instead, the ALJ simply failed to: (1) properly evaluate Corwin's subjective allegations of pain and disability; (2) fully and fairly develop the record and properly consider the opinions of Dr. Johnson; and (3) base his determination of Corwin's RFC on all the relevant evidence. Accordingly, I recommend this matter be remanded for futher consideration.
I recommend that this matter should be remanded to the Commissioner for further proceedings. On remand, the ALJ should consider all of the evidence relating to Corwin's subjective allegations of disability, including the objective medical evidence and the opinions of Dr. Johnson. The ALJ should address his reasons for crediting or discrediting those allegations, particularly in light of his further consideration of the medical evidence in the record. Furthermore, the ALJ should make his RFC determination based on all the relevant evidence, again, including the opinions of Dr. Johnson, the objective medical evidence, and Corwin's own testimony regarding her pain and disability. Accordingly, I believe that this matter should be remanded for further proceedings as discussed herein.
For the reasons set forth above, I respectfully recommend that the district court
The parties are advised, pursuant to 28 U.S.C. § 636(b)(1), that within fourteen (14) days after being served with a copy of this Report and Recommendation, any party may serve and file written objections with the district court.