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Gulick v. Colvin

United States District Court, Eighth Circuit

January 17, 2014

DAVID SCOTT GULICK, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

LEONARD T. STRAND UNITED STATES MAGISTRATE JUDGE

TABLE OF CONTENTS

I. INTRODUCTION...........................................................................2

II. BACKGROUND.............................................................................2

III. DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF.........3

IV. SUMMARY OF ALJ’S DECISION.....................................................5

V. THE SUBSTANTIAL EVIDENCE STANDARD...................................14

VI. ANALYSIS.................................................................................15

A. Did The ALJ Err In Giving Little Weight To Ms. Holmes’s Opinion?...............16

1. Applicable Standards ....................................................16

2. Analysis Of The ALJ’s Reasons.......................................19

3. Res Judicata...............................................................21

B. Did The ALJ Err In Formulating Gulick’s RFC?..........................23

C. Did The ALJ Err In Finding That Gulick Is Capable Of Performing Other Work?.......................26

VII. CONCLUSION AND RECOMMENDATION.......................................32

I. INTRODUCTION

Plaintiff David Gulick seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his applications for Social Security Disability Insurance benefits (DIB) and Supplemental Security Income benefits (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Gulick contends that the administrative record (AR) does not contain substantial evidence to support the Commissioner’s decision that he was not disabled. For the reasons that follow, I recommend that the decision be reversed and remanded for further proceedings.

II. BACKGROUND

Gulick was born in 1966 and was 42 years old on his alleged disability onset date of June 5, 2009.[1] AR 13, 22. He has a high school diploma and past relevant work as a box sealing operator and a cook helper. AR 22, 37, 253. He protectively filed his applications for DIB and SSI on June 9, 2009. AR 11. The applications were denied initially and on reconsideration. Id. Gulick then requested a hearing, which was conducted October 12, 2011, by Administrative Law Judge (ALJ) G. Roderic Anderson. Id. Gulick testified during the hearing, as did a vocational expert (VE). AR 30-78. The ALJ issued a decision denying Gulick’s application on October 26, 2011. AR 11-24. On March 28, 2013, the Appeals Council denied Gulick’s request for review. AR 1-3. As such, the ALJ’s decision is the final decision of the Commissioner. AR 1; see also 20 C.F.R. §§ 404.981, 416.1481.

On May 3, 2013, Gulick commenced an action in this court seeking review of the ALJ’s decision. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommended disposition of the case. The parties have briefed the issues and the matter is now fully submitted.

III. DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

A disability is defined as the inability 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 that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists . . . in significant numbers either in the region where such individual lives or in several regions of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First, the Commissioner will consider a claimant’s work activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

Second, if the claimant is not engaged in substantial gainful activity, the Commissioner looks to see “whether the claimant has a severe impairment that significantly limits the claimant’s physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a slight abnormality that would not significantly limit the claimant’s physical or mental ability to do basic work activities.” Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).

The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291 (1987). “The sequential evaluation process may be terminated at step two only when the claimant’s impairment or combination of impairments would have no more than a minimal impact on her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).

Third, if the claimant has a severe impairment, then the Commissioner will consider the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled, regardless of age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).

Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the presumptively disabling impairments, then the Commissioner will assess the claimant’s residual functional capacity (RFC) to determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a medical question defined wholly in terms of the claimant’s physical ability to perform exertional tasks or, in other words, what the claimant can still do despite his or her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks omitted); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for providing evidence the Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is responsible for developing the claimant’s “complete medical history, including arranging for a consultative examination(s) if necessary, and making every reasonable effort to help [the claimant] get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other evidence listed in the regulations. See Id . If a claimant retains the RFC to perform past relevant work, then the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

Fifth, if the claimant’s RFC will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to prove that there is other work that the claimant can do, given the claimant’s RFC as determined at Step Four, and his or her age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make an adjustment to other work, but also that the other work exists in significant numbers in the national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant numbers in the national economy, then the Commissioner will find the claimant is not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). At Step Five, even though the burden of production shifts to the Commissioner, the burden of persuasion to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).

IV. SUMMARY OF ALJ’S DECISION

The ALJ made the following findings:

(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2011.
(2) The claimant has not engaged in substantial gainful activity since June 5, 2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: insulin dependent diabetes mellitus, type II; diabetic neuropathy, bilateral feet; bilateral cataract, right worse than left; morbid obesity; residuals of four-vessel coronary artery bypass graft; and depressive disorder (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) but with additional limitations. He is able to perform work that allows for a sit/stand option and does not require more than occasional crawling, squatting or kneeling; repetitive bending, twisting or turning; or any climbing of stairs or ladders. The claimant is able to work in an environment free from exposure to dust, smoke and fumes. He must not operate machinery or motor vehicles, work around moving machinery, or at unprotected heights. He is able to do work that does not require frequent detailed reading. Due to his severe mental impairments, the claimant has moderate limitation in the ability to understand, remember and carry out detailed instructions and to have frequent contact with the public and coworkers. Moderate impairment is defined as having intermittent limitation in that area but with performance in that area still being satisfactory.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on June 17, 1966 and was 42 years old, which is defined as a younger individual age 18-44, on the amended alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(9) Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from June 5, 2009, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

AR 11-24. At Step Two, the ALJ found the following claimed impairments to be severe, as they cause more than minimal limitations in Gulick’s ability to perform work-related activities: insulin dependent diabetes mellitus, type II; diabetic neuropathy, bilateral feet; bilateral cataract, right worse than left; morbid obesity; residuals of four-vessel coronary artery bypass graft; and depressive disorder. AR 13-14. However, the ALJ determined that other claimed impairments were non-severe, finding that the evidence does not demonstrate that they cause more than minimal limitations. AR 14. Those impairments are obstructive sleep apnea, hypertension, a previous myocardial infarction (MI) and diabetic retinopathy. Id. Gulick disputes the ALJ’s conclusion that these claimed impairments are non-severe. He also contends that even if the impairments are non-severe, the ALJ erred in not considering them while determining Gulick’s RFC.

At Step Three, the ALJ found that none of Gulick’s impairments, individually or in combination, met or equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. AR 14. The ALJ analyzed two neurological listings (11.14 and 11.17) and two mental-disorder listings (12.04 and 12.06). AR 14-16. In his brief, Gulick does not take issue with the ALJ’s findings concerning the neurological listings. As such, I will not address the ALJ’s analysis of those listings. Gulick does, however, contend that the ALJ erred in concluding that he is not disabled pursuant to Listings 12.04 and 12.06.

With regard to those listings, the ALJ first analyzed the “paragraph B” criteria, noting that to satisfy these criteria the impairments must cause at least two “marked” limitations or one “marked” limitation and “repeated” episodes of decompensation.[2]Id. A “marked” limitation is one that is more than moderate but less than extreme. Id. The ALJ found that Gulick has mild restrictions concerning activities of daily living, mild difficulties in social functioning and moderate difficulties with regard to concentration, persistence or pace. AR 15-16. The ALJ also found that Gulick had experienced no episodes of decompensation which have been of extended duration. AR 16. Therefore, the ALJ found the paragraph B criteria were not satisfied. Id. He also stated that he had considered the “paragraph C” criteria and that the evidence failed to establish those criteria, as well. Id. In making these findings, the ALJ expressly rejected an opinion submitted by Lois Holmes, a social worker. Id. The ALJ acknowledged that her opinion, if adopted, “would direct a finding that [Gulick] meets Listings 12.04 and 12.06.” Id. I will discuss the ALJ’s reasons for rejecting Ms. Holmes’s opinions infra, in connection with his Step Four analysis.

At Step Four, the ALJ provided a RFC assessment and found that Gulick had the RFC to perform sedentary work[3] with additional limitations. AR 17. The ALJ determined that the work would have to allow for a sit/stand option and not require more than occasional crawling, squatting or kneeling; repetitive bending, twisting or turning; or any climbing of stairs or ladders. Id. Moreover, the work environment would have to be “free from exposure to dust, smoke and fumes” and the work must not require Gulick to operate machinery or motor vehicles, work around moving machinery, or at unprotected heights. Id. As a further limitation, the ALJ found that the work must not require frequent detailed reading. Id. Finally, the ALJ noted that because of Gulick’s severe mental impairments, he has moderate limitation in the ability to understand, remember and carry out detailed instructions and to have frequent contact with the public and coworkers. Id. According to the ALJ, this means Gulick would have “intermittent limitation in that area but with performance in that area still being satisfactory.” Id.

In explaining these findings, the ALJ first addressed the credibility of Gulick’s statements concerning the disabling effects of his impairments. Id. He noted that Gulick claims to be in “constant, widespread pain that is only made worse by any form of activity, ” with his primary problems being “chest pain, bilateral arm and foot neuropathic pain, shortness of breath (with minimal exertion), poor grip strength and difficulty maintaining position Id. He referenced the relevant factors for weighing a claimant’s credibility and concluded that Gulick’s statements were not credible to the extent that they were inconsistent with the RFC determination. Id. The ALJ provided the following reasons for this finding: (1) Gulick’s allegations of total disability are inconsistent with the objective medical evidence, (2) the absence of more-aggressive treatment indicates that Gulick’s symptoms are not as severe as alleged, (3) Gulick’s reports concerning his daily activities suggest that he is not as impaired as he claims to be and (4) the medical opinions, as weighted by the ALJ, do not support Gulick’s allegations. AR 18-22.

With regard to the medical evidence and medical opinions, the ALJ first noted that Gulick suffered a myocardial infarction that required four-vessel bypass surgery in 2003. AR 18. However, the medical evidence indicates no visits to a cardiologist since at least October 2006. Id. Instead, since that time Gulick has been followed by a general practitioner, Jonathan Taylor, D.O., and other general practitioners. Id. According to the ALJ, Dr. Taylor’s records “chronicle a rather stable baseline of symptoms” except for “fluctuating and poorly controlled blood sugars.” Id. The ALJ then described other symptoms and complaints reflected in Dr. Taylor’s records, including “some mention of ongoing, low-level, left-sided chest pain.” Id. The ALJ found that the records do not reveal any severe symptoms and contained “little mention of bodily pain.” AR 18-19. He noted that in April 2009, Dr. Taylor reported that Gulick has ...


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