United States District Court, N.D. Iowa, Cedar Rapids Division
For Shirley Rae Cowles, Plaintiff: Timothy N Tripp, LEAD ATTORNEY, Tripp, P.C., Pella, IA.
For Commissioner of Social Security, agent of Carolyn W Colvin, Defendant: Marisa Silverman, Social Security Administration, Dallas, TX; Stephanie Johnson Wright, U.S. Attorney's Office, Cedar Rapids, IA.
MEMORANDUM OPINION AND ORDER
LEONARD T. STRAND, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Shirley Rae Cowles seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for Social Security Disability benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Cowles contends that the administrative record (AR) does not contain substantial evidence to support the Commissioner's decisions that she was not disabled during the relevant period. For the reasons that follow, the Commissioner's decision is affirmed.
Cowles was born in 1955 and has a bachelor's degree. AR 56, 144. She has past relevant work as a waitress. AR 42, 281. She filed an application for DIB on August 25, 2009, alleging a disability onset date of September 19, 2006. AR 35, 144-45. She alleged disability due to arthritis, sinusitis, migraines, thyroid cancer, chronic back pain and numbness and tingling in her left calf and foot. AR 190. The application was initially denied on February 18, 2010, and again on reconsideration on April 6, 2010. AR 35. Cowles then requested a hearing before an Administrative Law Judge (ALJ) and on August 5, 2011, ALJ Eric Basse held a hearing during which Cowles and a vocational expert (VE) testified. AR 35, 49-93. On October 14, 2011, the ALJ issued a decision denying Cowles' claim. AR 34-42. Cowles then sought review by the Appeals Council. The Appeals Council granted the request for review but ultimately adopted the ALJ's findings and conclusions as to whether Cowles was disabled. AR 18-21. The Appeals Council's decision became the final decision of the Commissioner. AR 15; 20 C.F.R. § 404.981.
On April 23, 2014, Cowles filed a complaint (Doc. No. 1) in this court seeking review of the Commissioner's decision. On June 19, 2014, with the consent of the parties (Doc. No. 7), the Honorable Linda R. Reade transferred this case to Chief Magistrate Judge Jon S. Scoles for final disposition and entry of judgment. On January 12, 2015, the case was reassigned to me. The parties have briefed the issues and the matter is now fully submitted.
II. 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 which 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); accord 20 C.F.R. § 404.1505. 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).
To determine whether a claimant has a disability within the meaning of the Act, the Commissioner follows a five-step sequential evaluation process outlined in the regulations. 20 C.F.R. § 404.1520; 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).
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).
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). 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); see also Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (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); see also 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). " 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 also 20 C.F.R. § 404.1545(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). 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).
Fifth, if the claimant's RFC as determined in Step Four will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to show 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 show 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). 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). At Step Five, while 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).
III. ALJ'S FINDINGS
The ALJ made the following findings:
(1) The claimant meets the insured status requirements of the Social Security Act through March 31, 2011.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of September 19, 2006 through her date last insured of March 31, 2011 (20 CFR 404.1571 et seq. ).
(3) Through the date last insured, the claimant had the following severe impairments: degenerative disk disease; myofascial pain; and status post thyroidectomy and ablation (20 CFR 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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 through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can lift and carry 20 pounds occasionally and ten pounds frequently. She can stand and walk six hours out of an eight-hour day. She can sit six hours out of an eight-hour day. She can occasionally climb, balance, stoop, crouch and crawl.
(6) Through the date last insured, the claimant was capable of performing past relevant work as an informal waitress. This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
(7) The claimant was not under a disability, as defined in the Social Security Act, at any time from September 19, 2006, the alleged onset date, through March 31, 2011, the date last insured (20 CFR 404.1520(f)).
IV. THE SUBSTANITAL EVIDENCE STANDARD
The Commissioner's decision must be affirmed " if it is supported by substantial evidence on the record as a whole." Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006); see 42 U.S.C. § 405(g) (" The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ." ). " Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion." Lewis, 353 F.3d at 645. The Eighth Circuit explains the standard as " something less than the weight of the evidence and [that] 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." Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994).
In determining whether the Commissioner'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). The court considers both evidence which supports the Commissioner's decision and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must " search the record for evidence contradicting the [Commissioner's] decision and give that evidence appropriate weight when determining whether the overall evidence in support is substantial." Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Sec'y of Health & Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not " reweigh the evidence presented to the ALJ," Baldwin, 349 F.3d at 555 (citing Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or " review the factual record de novo." Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it " possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the court] must affirm the [Commissioner's] denial of benefits." Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). This is true even in cases where the court " might have weighed the evidence differently." Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)). The court may not reverse the Commissioner's decision " merely because substantial evidence would have supported an opposite decision." Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (" [A]n administrative decision is not subject to reversal simply because some evidence may support the opposite conclusion." ).
Cowles raises the following arguments in contending that the ALJ's decision is not supported by substantial evidence:
(1) The ALJ erred by determining that various impairments were not severe.
(2) The ALJ erred in determining Cowles' RFC.
(3) The ALJ erred by considering Cowles' waitressing work as substantial gainful employment and, therefore, in determining it to be past relevant work.
I will address these arguments separately.
1. Severe Impairments
A. Applicable Standards
At Step Two, the ALJ must consider whether a medically determinable impairment is " severe." 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is one that " significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). Basic work activities include physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; capacities for seeing, hearing and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b). If the impairment would have no more than a minimal effect on the claimant's ability to work, it is not severe. Page, 484 F.3d at 1043.
When a claimant has multiple impairments, " the Social Security Act requires the Commissioner to consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient medical severity to be disabling." Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir. 2000); see also 20 C.F.R. § 404.1523. It is the claimant's burden to establish that his or her impairment or combination of impairments is severe. Mittelstedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). " Severity is not an onerous requirement ...