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Sharkey v. Colvin

United States District Court, N.D. Iowa, Eastern Division

October 15, 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 4) filed by Plaintiff Gregory Sharkey on December 5, 2013, requesting judicial review of the Social Security Commissioner's decision to deny his application for Title XVI supplemental security income ("SSI") benefits.[1] Sharkey asks the Court to reverse the decision of the Social Security Commissioner ("Commissioner") and order the Commissioner to provide him SSI benefits. In the alternative, Sharkey requests the Court to remand this matter for further proceedings.


Pursuant to 42 U.S.C. § 1383(c)(3), the Commissioner's final determination after an administrative hearing 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). 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, 393 F.3d at 801 (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. Sharkey's Education and Employment Background

Sharkey was born in 1971. Sharkey did not graduate from high school, but later earned a GED. In the past, Sharkey worked as an iron worker and construction worker.

B. Vocational Expert's Testimony from the Administrative Hearing

At the administrative hearing, the ALJ provided vocational expert Julie Svec with a hypothetical for an individual who could:

occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. This individual could stand or walk for six hours in an eight hour workday and sit for six hours in an eight hour workday. His ability to push and pull, including the operation of hand and foot controls would be unlimited within those weights. He could occasionally climb ramps and stairs, ladders, ropes and scaffolds, balance, stoop, kneel, crouch, and crawl. Further, this individual would be able to do only simple, routine tasks... and he could have only short lived, superficial contact with the public, coworkers, or supervisors.

(Administrative Record at 71.) The vocational expert testified that under such limitations, Sharkey could not perform his past relevant work. The vocational expert testified, however, that Sharkey could perform the following jobs: (1) folder (900 positions in Iowa and 50, 000 positions in the nation), (2) cleaner (1, 500 positions in Iowa and 200, 000 positions in the nation), and (3) laundry sorter (1, 500 positions in Iowa and 93, 000 positions in the nation). The ALJ further inquired:

Q: All right, if I would add to the hypothetical question that the individual would miss three or more days of work per month, would there be any jobs he could do?
A: No, there would not.
Q: How about if he required frequent unscheduled breaks from work in addition to his regularly scheduled breaks?
A: No work would be possible.

(Administrative Record at 72-73.)

C. Sharkey's Medical History

On July 30, 2010, Sharkey presented at Hillcrest Mental Health Center in Dubuque, Iowa. Sharkey reported that:

he just left Anamosa prison after a 3 year stay. [He] reported that he is here for anxiety, mood management and self control. He reported that he has a lot of anger and self control problems. He denied feeling depressed, now he is more angry. He denied suicidal ideation but indicated some homicidal ideation but has no plan or intent to harm others. He reported that he wants to get things under control. He reported that [h]e has been forcing rage down for 3 years since he went to prison.

(Administrative Record at 287.) Sharkey also reported that prior to going to prison, he drowned "himself with alcohol and drugs."[2] Sharkey stated that in the past "his treatment never had a chance because of his substance use."[3] Michelle Watters, LMHC, noted the following symptoms for Sharkey: agitation, hopelessness, irritability, loss of concentration, loss of energy, loss of interest, loss of motivation, difficulty sleeping, worthlessness, tiredness/fatigue, worrying, racing thoughts, aggression, fighting, distractability, becoming easily frustrated, impatience, impulsiveness, and short attention span. Watters diagnosed Sharkey with bipolar disorder, anxiety disorder, and intermittent explosive disorder. Watters assessed Sharkey with a GAF score of 45. Watters recommended medication and therapy as treatment.

Sharkey returned to Hillcrest on September 20, 2010, for medication management. Andi Hemesath, ARNP, noted that Sharkey was using marijuana daily. Hemesath assessed Sharkey with a GAF score of 55. Hemesath recommended that Sharkey continue medication as treatment.

On October 4, 2010, Sharkey was referred by Disability Determination Services ("DDS") to Brenna Healy, M.A., for a psychological evaluation. In reviewing Sharkey's personal history, Healy noted:

[Sharkey] was incarcerated for three years including stays at Anamosa, Fort Madison, and Clarinda. He was found guilty of first degree burglary although he did not believe the conviction was fair. He has a history of aggressive behavior and fighting dating back to early adolescence. He was in Eldora for a period of time and completed his GED after leaving school following tenth grade. He reports a history of three OWIs ...

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