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Losenicky v. Colvin

United States District Court, N.D. Iowa, Cedar Rapids Division

June 12, 2014

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


JON STUART SCOLES, Magistrate Judge.


This matter comes before the Court on the Complaint (docket number 1) filed by Plaintiff Diane E. Losenicky on June 24, 2013, requesting judicial review of the Social Security Commissioner's decision to deny her application for Title II disability insurance benefits. Losenicky 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, Losenicky requests the Court to remand this matter for further proceedings.


On June 24, 2013, Losenicky filed this action for judicial review. The Commissioner filed an Answer on October 29, 2013. On December 2, 2013, Losenicky filed a brief arguing that there is no substantial evidence in the record to support the ALJ's finding that she is not disabled and that she is functionally capable of performing her past relevant work as a telephone solicitor. On January 28, 2014, 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 February 10, 2014, Losenicky filed a reply brief. On September 11, 2013, both parties consented to proceed before a magistrate judge in this matter pursuant to the provisions set forth in 28 U.S.C. § 636(c).


Title 42, United States Code, Section 405(g) provides that the Commissioner's final determination following an administrative hearing not to award disability insurance benefits is subject to judicial review. 42 U.S.C. § 405(g). 42 U.S.C. § 405(g) provides the Court with the power to: "[E]nter... a judgment affirming, modifying, or reversing the decision of the Commissioner... with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). "The findings of the Commissioner... as to any fact, if supported by substantial evidence, shall be conclusive..." Id.

The Court will "affirm the Commissioner's decision if supported by substantial evidence on the record as a whole." Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012) (citation omitted). Substantial evidence is defined as "less than a preponderance but... enough that a reasonable mind would find it adequate to support the conclusion.'" Id. (quoting Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010)); see also Brock v. Astrue, 674 F.3d 1062, 1063 (8th Cir. 2010) ("Substantial evidence is evidence that a reasonable person might accept as adequate to support a decision but is less than a preponderance.").

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 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); see also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007) (Review of an ALJ's decision "extends beyond examining the record to find substantial evidence in support of the ALJ's decision; [the court must also] consider evidence in the record that fairly detracts from that decision."). In Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994), the Eighth Circuit Court of Appeals explained this standard as follows:

This standard is something less than the weight of the evidence and it allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal on appeal.'

Id. (quoting Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir. 1991), in turn quoting Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988)). In Buckner v. Astrue, 646 F.3d 549 (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.'" Id. at 556 (quoting Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008)). "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) (citing Chamberlain v. Shalala, 47 F.3d 1489, 1493 (8th Cir. 1995)); see also Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) ("If substantial evidence supports the ALJ's decision, we will not reverse the decision merely because substantial evidence would have also supported a contrary outcome, or because we would have decided differently."); Moore v. Astrue, 572 F.3d 520, 522 (8th Cir. 2009) ("If there is substantial evidence to support the Commissioner's conclusion, we may not reverse even though there may also be substantial evidence to support the opposite conclusion.' Clay v. Barnhart, 417 F.3d 922, 928 (8th Cir. 2005).").


A. Losenicky's Education and Employment Background

Losenicky was born in 1953. She completed the twelfth grade. Over the past 15 years, Losenicky has worked as a telephone solicitor, sales clerk, and retail manager. She has not worked since 2011.[1]

B. Administrative Hearing Testimony

I. Losenicky's Testimony

At the administrative hearing, Losenicky's attorney asked Losenicky what caused her to stop working. Losenicky responded that she stopped working due to back problems. She stated that her back was "so bad" that she was unable to perform her job stocking shelves or working a cash register. Losenicky testified that the only way to possibly fix her back would be to have surgery. She did not want to have surgery, however, because she had heard stories that the type of surgery she needed did not always fix the problem, and sometimes made it worse. Losenicky's attorney inquired about how her back problems placed limitations on her functional abilities:

Q: So, how are you limited with your back?
A: Just simple things like everyday housework you know. What used to take me a couple hours now can take me up to three days to do. Vacuuming is one of those things that's just almost impossible. Sweeping. We make chicken pot pie for Thanksgiving dinner, and I rolled out the dough. Well, then I winded up in bed just from rolling the dough.
Q: Standing up?
A: Standing up, rolling that, yes. That just you know - and even lifting can wind up pulling into your back you know, and then with the arthritis you know in my body, I've had flares in every joint that you can have flares in with rheumatoid arthritis, and that prevents you from doing things. You're stiff. You know you ache all over....

(Administrative Record at 36.) Losenicky also testified that her pain causes her to become easily fatigued and lack stamina. She stated that on a bad day, her back pain can rate at an 8 or 9 on a 10-point scale, with 10 being the greatest amount of pain. Lastly, Losenicky's attorney inquired what she believed was her "biggest impediment" to working a full-time job. Losenicky answered that pain in her knees, back, shoulders, wrists, and hands kept her from being able to work full-time.

2. Vocational Expert's Testimony

At the hearing, the ALJ provided vocational expert Carma A. Mitchell with a hypothetical ...

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