JON STUART SCOLES, Magistrate Judge.
This matter comes before the Court on the Complaint (docket number 3) filed by Plaintiff Leah D. Kearney on August 25, 2015, requesting judicial review of the Social Security Commissioner's decision to deny her application for Title II disability insurance benefits.
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).").
Kearney was born in 1974. In school, Kearney completed the tenth grade. She later earned a GED. In the past, Kearney worked as a photocopy machine operator and nursery school attendant.
At the administrative hearing, the ALJ provided vocational expert Roger Marquardt with a hypothetical for an individual who is able to:
(Administrative Record at 97.) The vocational expert testified that under such limitations, Kearney could perform her past work as a photocopy machine operator.
Next, the ALJ inquired whether changing the hypothetical individual's handling and fingering to occasional, would allow the individual to continue to perform the photocopy machine operator job. The vocational expert responded that with the handling and fingering limitations changed to occasional, Kearney could not perform the photocopy machine operator job. The vocational expert, however, testified that under such limitations, including being limited to occasional handling and fingering, Kearney could perform the following light, unskilled jobs: (1) counter clerk, (2) school bus monitor, and (3) tanning salon attendant.
Finally, the ALJ and vocational expert had the following colloquy:
(Administrative Record at 98.)
On October 10, 2011, Kearney was referred by Disability Determination Services ("DDS") to Dr. Harlan J. Stientjes, Ph.D., for a psychological evaluation. In reviewing Kearney's medical history, Dr. Stientjes noted:
(Administrative Record at 413.) Dr. Stientjes also thoroughly addressed Kearney's present and past mental health history. Dr. Stientjes noted Kearney maintained good eye contact, but "has an anxious, self-conscious quality. She keeps palms down as much as possible. There are some open cracks at flexation areas."
(Administrative Record at 414.) Dr. Stientjes also found that Kearney has obsessive/compulsive components to her "contemplation of her skin problems. She is self-conscious to the point of self-absorption."
Upon examination, Dr. Stientjes diagnosed Kearney with major depressive disorder and anxiety disorder. Dr. Stientjes determined Kearney would have the following work limitations:
(Administrative Record at 415.) Dr. Stientjes concluded:
(Administrative Record at 415.)
On October 25, 2011, Dr. Sandra Davis, Ph.D., reviewed Kearney's medical records and provided DDS with a Psychiatric Review Technique and mental residual functional capacity ("RFC") assessment for Kearney. On the Psychiatric Review Technique assessment, Dr. Davis diagnosed Kearney with major depressive disorder and anxiety disorder. Dr. Davis determined Kearney had the following limitations: mild restriction of activities of daily living, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. On the mental RFC assessment, Dr. Davis found Kearney was moderately limited in her ability to: carry out detailed instructions, maintain attention and concentration for extended periods, interact appropriately with the general public, and respond appropriately to changes in the work setting. Dr. Davis concluded:
(Administrative Record at 433.)
On December 7, 2011, Kearney was referred by DDS to Dr. John D. Kuhnlein, D.O., for a consultative examination. Dr. Kuhnlein reviewed Kearney's medical history as follows:
(Administrative Record at 446.) Dr. Kuhnlein also discussed activities of daily living with Kearney and found she:
(Administrative Record at 446.) Upon examination, Dr. Kuhnlein diagnosed Kearney with a severe skin condition. Because of her skin condition, Dr. Kuhnlein opined Kearney would have difficulty performing many activities. Specifically, Dr. Kuhnlein determined:
(Administrative Record at 449.)
On December 28, 2011, Dr. Matthew Byrnes, D.O., reviewed Kearney's medical records and provided DDS with a physical RFC assessment for Kearney. Dr. Byrnes determined Kearney could: (1) occasionally lift and/or carry 20 pounds, (2) frequently lift and/or carry 10 pounds, (3) stand and/or walk with normal breaks for a total of about six hours in an eight-hour workday, (4) sit with normal breaks for a total of about six hours in an eight-hour workday, and (5) limited to push and/or pull only frequently with her upper and lower extremities. Dr. Byrnes also determined Kearney could frequently climb ramps and stairs, balance, stoop, and crouch, but never climb ladders, ropes, or scaffolds, and never crawl. Dr. Byrnes also found that Kearney should be limited to frequent bilateral handling (gross manipulation) and fingering (fine manipulation). Dr. Byrnes further opined Kearney should avoid concentrated exposure to extreme cold, extreme heat, wetness, humidity, vibration, and hazards, such as machinery and heights. Dr. Byrnes found no visual or communicative limitations.
On March 5, 2012, Kearney met with Dr. Matthew G. Fox, M.D., for a check of her epidermolytic hyperkeratosis. Dr. Fox noted:
(Administrative Record at 471.) Upon examination, Dr. Fox noted scaly skin and cracked fissures on the palms of her hands and soles of her feet. Dr. Fox diagnosed Kearney with epidermolytic hyperkeratosis. Dr. Fox opined "[u]nfortunately there is not a whole lot we can do for [Kearney] except encourage her to continue to moisturize her skin aggressively. I am a little bothered by the intensity of her symptoms and how it is effecting [sic] her functioning ability."
The ALJ determined Kearney 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 Kearney had not engaged in substantial gainful activity from June 1, 2010 through March 31, 2012, her date last insured. At the second step, the ALJ concluded from the medical evidence Kearney has the following severe impairments: epidermolytic hyperkeratosis and major depressive disorder. At the third step, the ALJ found Kearney 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 Kearney's RFC as follows:
(Administrative Record at 26.) Also at the fourth step, the ALJ determined Kearney is unable to perform her past relevant work. At the fifth step, the ALJ determined that based on her age, education, previous work experience, and RFC, Kearney could work at jobs that exist in significant numbers in the national economy. Therefore, the ALJ concluded Kearney was not disabled.
Kearney argues the ALJ erred in three respects. First, Kearney argues the ALJ failed to properly address or determine whether she is disabled pursuant to Listing § 8.02. Second, Kearney argues the ALJ failed to properly consider the opinions of Dr. Kuhnlein, an examining physician. Lastly, Kearney argues the ALJ's RFC assessment is flawed because it is not supported by substantial evidence.
At step three of the five-step sequential analysis, an ALJ is required to determine whether a claimant's alleged impairment meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If a claimant's impairment, in fact, meets one of the impairments in the "Listings," then the ALJ must find that he or she is disabled. Kearney argues she is presumptively disabled because she meets or equals Listing § 8.02. Kearney maintains the ALJ failed to adequately address whether she meets or equals Listing § 8.02, and merely summarily determined she did not. Kearney asserts that the ALJ's failure to properly and adequately address Listing § 8.02, and find her disabled based on the Listing requires remand for further consideration by the ALJ.
In order to establish the criteria for Listing § 8.02, a claimant must show that he or she suffers from ichthyosis, "with extensive skin lesions that persist for at least 3 months despite continuing treatment as prescribed."
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 8.00(C)(1)(a)-(c). The burden is on the claimant to show that his or her impairment meets or equals a listing. Carlson v. Astrue, 604 F.3d 589, 593 (8th Cir. 2010) (citing Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004)). Furthermore, in order to meet a listing, "`an impairment must meet all of the listing's specified criteria.'" Id.; see also Sullivan v. Zebley, 493 U.S. 521, 530 (1990) ("For a claimant to show that his [or her] impairment matches a listing, it must meet all of the specified medical criteria.").
In her decision, the ALJ addressed Listing § 8.02 by simply stating "the undersigned has reviewed Listings 8.02 for Ichthyosis . . . and does not find the medical evidence supports the requirement of extensive lesions that persisted for three months despite continuing treatment as prescribed."
A review of the record reveals genetic testing in 1992 confirmed Kearney has ichthyosis, specifically epidermolytic hyperkeratosis.
In December 2011, Dr. Kuhnlein, a consultative examining doctor, again confirmed Kearney suffered from epidermolytic hyperkeratosis:
(Administrative Record at 446.) Upon physical examination, Dr. Kuhnlein also noted Kearney had difficulty making a full fist with her right hand, and had diminished grip strength in her right hand.
(Administrative Record at 447.) Finally, Dr. Kuhnlein determined Kearney has the following functional limitations:
(Administrative Record at 449.)
Dr. Fox also treated Kearney's epidermolytic hyperkeratosis. In March 2012, Dr. Fox noted Kearney had the most difficulties with her hands and feet. For example, Dr. Fox found "[u]sing her hands can be difficult. . . . She finds it very difficult to open cans, grasp things, turn doorknob, and even hold pencils and pens for writing."
(Administrative Record at 500.) In March 2013, Kearney continued to have difficulties with her epidermolytic hyperkeratosis. Dr. Fox noted Kearney's hands were dry and tight preventing "flexibility and dexterity involving her hands and fingers. . . . Her hands are swollen. She gets blisters under her skin of her hands."
Finally, in November 2013, Kearney was evaluated at the University of Iowa Hospitals and Clinics in the Dermatology Clinic. She was again diagnosed with epidermolytic hyperkeratosis. Upon examination, Dr. Brian L. Swick, M.D., found "[t]he most severely affected areas include the palms and soles, as there is extensive thickening of skin, with overlying fissuring. There is noted decreased range of motion."
Having reviewed the entire record, it is undisputed Kearney has ichthyosis, specifically epidermolytic hyperkeratosis. There is also evidence from multiple treating and examining sources (Drs. Kuhnlein, Fox, and Swick) that Kearney suffered from lesions on her hands and feet that caused limitations with gripping, walking, and performing physical activities, such as lifting and pushing or pulling. Under such circumstances, the Court finds the ALJ's generic statement that she did not find medical evidence to support Kearney meeting or equaling Listing § 8.02, without any further reasoning or elaboration, is inadequate and requires remand. Accordingly, on remand the ALJ must fully consider and explain her reasons for finding whether Kearney does or does not meet or equal Listing § 8.02.
Kearney argues that the ALJ failed to properly evaluate the opinions of her consultative examiner, Dr. Kuhnlein. Implicitly, Kearney also argues that by improperly discounting Dr. Kuhnlein's opinions, the ALJ's RFC assessment is flawed because it does not fully address her functional limitations. Kearney concludes that this matter should be remanded for further consideration of the opinions of Dr. Kuhnlein, and how Dr. Kuhnlein's opinions relate to her RFC.
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 her decision, the ALJ thoroughly reviewed Dr. Kuhnlein's findings, but failed to explain the weight provided to Dr. Kuhnlein's opinions. The ALJ simply stated "[t]he undersigned accords great weight to many of the limitations set forth by Dr. Kuhnlein, but does not find [Kearney] is as limited in standing and walking."
Kearney argues the ALJ's RFC assessment is flawed. Specifically, Kearney argues the ALJ's RFC assessment is not supported by substantial evidence. Kearney 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) adequately address or explain her reasons for determining that Kearney does not meet or equal Listing § 8.02; (2) fully and fairly develop the record and properly consider the opinions of Dr. Kuhnlein; and (3) base her determination of Kearney's RFC on all the relevant evidence. Accordingly, the Court finds that remand is appropriate.
The Court concludes that this matter should be remanded to the Commissioner for further proceedings. On remand, the ALJ must reconsider and fully address whether Kearney meets or equals Listing § 8.02. The ALJ must also fully and fairly develop the record with regard to Dr. Kuhnlein's opinions, including consideration of how Dr. Kuhnlein's opinions relate to Kearney's RFC determination. Lastly, the ALJ must make her RFC determination based on all of the relevant evidence.
For the foregoing reasons, it is hereby
This matter is
