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Shakespeare-Fore v. Colvin

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

March 24, 2015

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 Tammy Lynn Shakespeare-Fore on May 20, 2014, requesting judicial review of the Social Security Commissioner's decision to deny her application for Title II disability insurance benefits.[1] Shakespeare-Fore 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, Shakespeare-Fore requests the Court to remand this matter for further proceedings.


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, 969 (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. Shakespeare-Fore's Education and Employment Background

Shakespeare-Fore was born in 1967. She is a high school graduate. Additionally, Shakespeare-Fore earned a degree in travel and tourism from Hamilton Business College. Her past work includes jobs as a telemarketer, sales representative, photographer, and sales marketing trainer. At the time of the administrative hearing, Shakespeare-Fore testified that she was an "ordained" minister and was working as a puppy daycare trainer and photographer.[2] When asked how many hours she worked per week, Shakespeare-Fore explained that "[i]t fluctuates. I haven't watched a dog in probably a month. This week I have a dog coming for two days.... I don't have anybody currently that I'm going to be marrying, and I don't have any photography set up."[3]

B. Administrative Hearing Testimony

1. Shakespeare-Fore's Testimony

At the administrative hearing, Shakespeare-Fore testified that she suffers from back shoulder, and neck pain. She stated that her shoulder and neck pain also cause her to get migraine headaches. She stated that she gets migraines three or four times per month. Shakespeare-Fore also indicated that she suffers from low back pain, particularly in her left hip and leg. According to Shakespeare-Fore, she also has numbness and tingling in both feet. She has been prescribed a cane by her chiropractor. She also takes medication for her pain, but when the pain is not alleviated by the medicine, Shakespeare-Fore stated that she needs to lie down to "reset" her pain levels. She also stated that she needs to take regular breaks during the day, about every hour for 15 minutes at a time.

Shakespeare-Fore further explained that she also has difficulties with depression, ADHD, anxiety, anger, and poor sleep. She testified that she becomes easily angry with her husband and people in stores. She further stated that she wakes up "exhausted" due to her sleeping problems.

2. Vocational Expert's Testimony

At the hearing, the ALJ provided vocational expert Vanessa May with a hypothetical for an individual who is able to:

lift and/or carry, push and/or pull 10 pounds. The individual can stand and/or walk for two hours in a workday. The individual can sit for six hours in a workday. The individual can balance, stoop, kneel, crouch, climb ramps or stairs occasionally. The individual cannot crawl, cannot climb ladders, ropes, or scaffolds. The individual can perform simple repetitive tasks and some detailed tasks.

(Administrative Record at 84.) The vocational expert testified that under such limitations, Shakespeare-Fore could perform her past work as a telemarketer and a receptionist. The ALJ modified her hypothetical question to indicate that the individual "would be able to sit for only 30 minutes at a time then would need to stand for 30 minutes and so on throughout the day[.]"[4] The vocational expert testified that under the modified hypothetical, Shakespeare-Fore remained capable of performing her past work as a telemarketer and receptionist. Next, the ALJ inquired whether those jobs would be available if the hypothetical individual was unable to work with the public. The vocational expert responded that the telemarketing and receptionist jobs would be unavailable under such circumstances, but Shakespeare-Fore could perform the following sedentary jobs: (1) document preparer, (2) addresser, and (3) ticket counter. Lastly, the ALJ asked whether missing work four times per month would affect the identified occupations. The vocational expert answered that such jobs "would not be available on a full-time competitive basis."[5]

Shakespeare-Fore's attorney also questioned the vocational expert:

Q: What if the individual had a restriction of rare sitting, rare standing, occasional walking, no bending? Would that person be able to perform any of those jobs?
A: No.
Q: And if a person because of fibromyalgia had to take a break say every hour or hour and a half would they be able to - for 20 minutes would they be able to perform any of those jobs?
A: No, not competitively.

(Administrative Record at 87.)

C. Shakespeare-Fore's Medical History

On July 14, 2009, Shakespeare-Fore underwent an MRI for low back pain. Dr. C.E. Clark, M.D., interpreted the MRI and found mild loss of disc space height with disc desiccation and bulging at the L4-L5 level. Dr. Clark also found a small right paracentral protrusion at L3-L4. Finally, Dr. Clark found generalized facet arthropathy in the mid and lower spine, particularly at the L3-L4 and L4-L5 levels.

On September 28, 2009, Shakespeare-Fore met with Dr. Kenneth McMains, M.D., for an independent medical examination. Dr. McMains reviewed Shakespeare-Fore's medical history as follows:

Ms. Shakespeare-Fore reports that on 6/2/09 while performing her normal activities as a photographer, she tripped over a drop sheet and started to fall backwards to her right, realized there was a small child on her right, and then while in the air, twisted to the left landing on her left hip and her outstretched left arm. The worker reports being embarrassed by the fall, tried to shake it off, and continued working. After a couple of hours, her back pain started to increase, as did her shoulder pain, and the following day she was unable to go to work because of the increasing pain. She then waited a couple of days... and saw her primary care physician, Dr. Beer, and was started on treatment with medication and therapy.
Because of increasing pain in her low back with radiation to the left leg, the worker then underwent an MRI of the lumbar spine on 7/14/09[.]... There was nothing on the MRI that appeared to be surgical. Because of her continued pain, Ms. Shakespeare-Fore was eventually referred to Dr. Mouw for a neurosurgical consultation, with Dr. Mouw stating that die worker was non-surgical and recommended therapy and conservative treatment. Eventually, Ms. Shakespeare-Fore was referred to Dr. Michael Jackson at Mercy Occupational Health for continued care. Dr. Jackson diagnosed the worker with: 1) left shoulder pain and 2) left piriformis syndrome and recommended continued conservative treatment.

(Administrative Record at 609.) Shakespeare-Fore reported to Dr. McMains that she had minimal improvement since the onset of her pain, and continued to have left shoulder, low back, and left lower extremity pain. Shakespeare-Fore rated her pain at 7.5 on a scale of 1 to 10, with 10 being the most severe pain. Upon examination, Dr. McMains found: (1) full range of motion and normal strength in the upper extremities, (2) full range of motion in the lower back, (3) normal heel-to-toe walking, and (4) negative bilateral leg raising. Dr. McMains diagnosed Shakespeare-Fore with chronic left piriformis syndrome and left shoulder strain. Dr. McMains opined that Shakespeare-Fore should expect a full recovery of her shoulder and low back pain with piriform injections and aggressive therapy. Dr. McMains concluded that:

The shoulder should continue to improve with normal daily activity with no specific treatment needed. Following the piriformis injection and therapy, there is expectation of case closure over the next 4 to 6 weeks with no permanent partial impairment or limitations on returning to her normal work activity.

(Administrative Record at 612.)

On November 16, 2009, Shakespeare-Fore met with Dr. F. Manshadi, M.D., for an independent medical examination. Dr. Manshadi noted Shakespeare-Fore's current symptoms as follows:

she has a dull ache which is piercing in the left buttock and left sacroiliac joint area. She reports the pain is constant in the low back and the buttock and she rates it at 8 out of 10. She reports her left shoulder pain is intermittent but comes on with lifting of maybe 3 to 5 pounds. The pain is over the left trapezius area and goes to the periscapular region.

(Administrative Record at 619.) Upon examination, Dr. Manshadi found that Shakespeare-Fore's strength in her lower extremities was 5/5, reflexes were normal, and knees and ankles were symmetrical. Dr. Manshadi noted that her left leg was shorter than her right leg. Dr. Manshadi also found that her left shoulder range of motion was limited. Dr. Manshadi diagnosed Shakespeare-Fore with left-sided SI joint dysfunction, left piriformis syndrome, and left shoulder rotator cuff syndrome. Dr. Manshadi recommended that Shakespeare-Fore avoid "any activity which requires continuous twisting, bending or crouching at her waist."[6] Dr. Manshadi also restricted Shakespeare-Fore from repetitious reaching at shoulder level or overhead, and no lifting with left her upper extremity beyond 3 to 5 pounds.

On April 5, 2010, Shakespeare-Fore met with Dr. Harlan J. Stientjes, Ph.D., for a psychological evaluation. Shakespeare-Fore's primary complaints were back pain, anxiety, and depression. Upon examination, Dr. Stientjes diagnosed Shakespeare-Fore with major depressive disorder and personality disorder. Specifically, Dr. Stientjes opined that her "[h]istory and presentation suggest diffuse personality disorder characteristics. She complains of problems with memory, but that is not ...

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