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Garrett v. Colvin

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

July 7, 2015

THAD LOUIS GARRETT, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

JON STUART SCOLES, Magistrate Judge.

I. INTRODUCTION

This matter comes before the Court on the Complaint (docket number 3) filed by Plaintiff Thad Louis Garrett on October 31, 2014, requesting judicial review of the Social Security Commissioner's decision to deny his applications for Title II disability insurance benefits and Title XVI supplemental security income ("SSI") benefits. Garrett asks the Court to reverse the decision of the Social Security Commissioner ("Commissioner") and order the Commissioner to provide him disability insurance benefits and SSI benefits. In the alternative, Garrett requests the Court to remand this matter for further proceedings.

II. PROCEDURAL BACKGROUND

On June 28, 2011, Garrett applied for both disability insurance benefits and SSI benefits. In his applications, Garrett alleged an inability to work since November 15, 2009 due to depression, diabetes, and degenerative changes in his spine. Garrett's applications were denied on October 11, 2011. On December 21, 2011, his applications were denied on reconsideration. On February 25, 2013, Garrett appeared via video conference with his attorney before Administrative Law Judge ("ALJ") David G. Buell for an administrative hearing. Garrett and vocational expert Carma A. Mitchell testified at the hearing. In a decision dated April 25, 2013, the ALJ denied Garrett's claims. The ALJ determined that Garrett was not disabled and not entitled to disability insurance benefits or SSI benefits because he was functionally capable of performing work that exists in significant numbers in the national economy. Garrett appealed the ALJ's decision. On September 12, 2014, the Appeals Council denied Garrett's request for review. Consequently, the ALJ's April 25, 2013 decision was adopted as the Commissioner's final decision.

On October 31, 2014, Garrett filed this action for judicial review. The Commissioner filed an Answer on January 2, 2015. On January 30, 2015, Garrett filed a brief arguing that there is not substantial evidence in the record to support the ALJ's finding that he is not disabled and that he is functionally capable of performing other work that exists in significant numbers in the national economy. On March 20, 2015, 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 March 23, 2015, Garrett filed a reply brief. On March 25, 2015, Judge Mark W. Bennett referred this matter to a magistrate judge for issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

III. PRINCIPLES OF REVIEW

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). 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). Title 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 "must affirm the Commissioner's decision if it is supported by substantial evidence on the record as a whole.'" Bernard v. Colvin, 774 F.3d 482, 486 (8th Cir. 2014) (quoting Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006)). Substantial evidence is defined as less than a preponderance of the evidence, but is relevant evidence a "reasonable mind would find adequate to support the commissioner's conclusion.'" Grable v. Colvin, 770 F.3d 1196, 1201 (8th Cir. 2014) (quoting Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2011)).

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 Draper v. Colvin, 779 F.3d 556, 559 (8th Cir. 2015) ("If substantial evidence supports the Commissioner's conclusions, th[e] court does not reverse even if it would reach a different conclusion, or merely because substantial evidence also supports the contrary outcome.' Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007)."); Cline v. Colvin, 771 F.3d 1098, 1102 (8th Cir. 2014) ("As long as substantial evidence in the record supports the Commissioner's decision, [the court] may not reverse it because substantial evidence exists in the record that would have supported a contrary outcome, or because [the court] would have decided the case differently.' Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).").

IV. FACTS

A. Garrett's Education and Employment Background

Garrett was born in 1972. He is a high school graduate. Following high school, Garrett also attended one year of college. In the past, he has worked as material handler, stock clerk, and laborer in the meat packaging industry.

B. Administrative Hearing Testimony

1. Garrett's Testimony

At the administrative hearing, the ALJ asked Garrett to describe his typical day. Garrett responded that he generally wakes up around 7:00 a.m., gets his daughter ready for school, takes her to school, sits at home watching television, makes lunch, takes a nap, and picks his daughter up from school. Garrett also stated that about once per week he does household chores like washing dishes or doing the laundry. According to Garrett, at various times, he also receives help from his parents completing household chores.

Next, the ALJ inquired about Garrett's lower extremity problems. Garrett testified that he has undergone multiple left ankle surgeries, and his left ankle continues to bother him. He also stated that he has problems with his legs due to neuropathy and diabetes. He estimated that he could walk at a slow pace for "may be" five to ten minutes.

Turning to his upper extremities, the ALJ asked Garrett to describe his problems with his arms and hands. Garrett explained that he has undergone carpal tunnel surgery and elbow surgery in the past. More recently, he also had left shoulder surgery. He stated that he does not have "a lot of strength" in his elbows, and his hands often "go to sleep a lot."

Lastly, the ALJ and Garrett discussed his difficulties with diabetes:

Q:... Well, let's talk about, Mr. Carter mentioned the blood sugar aspect of diabetes. Tell me how that affects your life.
A: Well, if I get too - if I have too low blood sugar I have a diabetic reaction. I have to get, you know, somebody to give me some sugar of some sort to raise my blood level, sugar levels back up.
Q: Okay.
A: If I don't get anybody to do that for me, or if I'm not able to do it by myself, I can go into a coma and then eventually end up passing away from it....

(Administrative Record at 64-65.)

Garrett's attorney also questioned Garrett. First, Garrett's attorney inquired how often Garrett has difficulty with low blood sugar levels. Garrett stated that he has to address low blood sugar levels two to four times per week. He further stated that it takes him as little as five minutes, and as much as two hours to recover from a low blood sugar attack. Next, Garrett's attorney inquired about Garrett's ability to use his hands and fingers, and grasp items. Garrett testified that typing on a keyboard causes his hands and fingers to go numb within five to ten minutes. He also stated that grasping small items was difficult. With regard to his left shoulder problems, Garrett testified that he has difficulty lifting anything above chest high. Garrett further stated that due to his left ankle pain, he is unable to kneel or squat. When asked whether he believed he could work a full-time job, Garrett responded that he could not. Specifically, Garrett stated:

As bad as my diabetes has been with my blood sugars, and my joints and stuff giving away, I don't think I could stand to have a job for very long, if at all, to work. So, it [( sic )] just wouldn't be able to do it anymore.

(Administrative Record at 73.)

2. Vocational Expert's Testimony

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

limited to performing light work[.]... I want you to assume that this worker has some non-exertional limits, mainly that this worker can stoop, crouch, kneel, and crawl only occasionally, no more than one third of the time. This worker cannot climb ladders, ropes, and scaffolds on the job. The worker cannot do any lifting using... the non-dominant, left, upper extremity for any lifting above the shoulder level or so. So, can't do that at all. And then when it comes to handling and fingering cannot do either of those tasks more than frequent. So, up to frequent, but no more than that. And then when it comes to using both of the upper extremities, cannot do pushing or pulling using the upper extremities more than frequent....

(Administrative Record at 81.) The vocational expert testified that under such limitations, Garrett could not perform his past relevant work, but could perform the following jobs: (1) survey worker, (2) office helper, and (3) unskilled information clerk. Keeping the same functional limitations, the ALJ next inquired whether changing from light work to sedentary work would allow for an occupational base. The vocational expert responded that there would be unskilled sedentary jobs that Garrett could perform, including (1) document preparer, (2) touch-up screener, and (3) gauger. The ALJ's third hypothetical was identical to the first hypothetical, except that instead of frequent handling and fingering, the hypothetical individual could only occasionally handle and finger. For light work, the vocational expert testified that under such a limitation, Garrett could perform the following jobs: (1) counter clerk, (2) conveyor line tender, and (3) blending tank helper. For sedentary work, the vocational expert stated that under such a limitation, Garrett could perform work as a surveillance systems (1) monitor, or (2) a call-out operator.

Garrett's attorney also questioned the vocational expert:

Q: Let's assume a worker has to have unscheduled breaks varying from a half hour to two hours twice a week. Would that individual be able to perform competitive employment?
A: It's my opinion that they might start out at full-time employment, but typically if they were having those unscheduled breaks at that frequency, typically an employer would schedule them for fewer and fewer hours, and they wouldn't be able to sustain full-time, competitive employment in my opinion.
Q: Okay. And how about a worker who would be absent from work two to three days a month due to doctor's appointments, physical therapy, and the like?
A: It's been my experience that typically an employer will tolerate one to two days of absences per month, and typically two days every month is often not tolerated. So, for two to three days every month, I don't feel the person would be able to sustain full-time, competitive employment.

(Administrative Record at 87.)

C. Garrett's Medical History

On January 15, 2009, Garrett met with Rita Burley, LISW, at West Iowa Community Mental Health Center, in Denison, Iowa, complaining of "feeling down." Garrett reported that he had been receiving psychiatric medication from his family physician for dysthymic disorder. Upon examination, Burley noted that Garrett "identified his mood as up-and-down, having good days and bad days. His affect appeared depressed and tearful."[1] Burley opined that Garrett "may have minimized his symptoms and feelings during the intake."[2] Burley diagnosed Garrett with depressive disorder. She assessed his GAF at 56. Burley recommended individual therapy as treatment.

On August 13, 2009, Garrett met with Dr. Jack A. McCarthy, M.D., complaining of persistent paresthesias in his hands. Garrett described tightness in his hands, and loss of strength. Dr. McCarthy reviewed Garrett's medical history and noted that in the past, Garrett suffered from "significant" median nerve paresthesias and limitations with his hands in gripping and grasping due to swelling. In the past, he had undergone bilateral carpal tunnel release, and it "significantly" improved his pain. However, Garrett reported to Dr. McCarthy that his hand and wrist pain had returned over the past several months. Upon examination, Dr. McCarthy diagnosed Garrett with bilateral carpal tunnel syndrome, left long trigger finger, and diabetes mellitus. Dr. McCarthy administered epidural steroid injections to Garrett as treatment.

On October 25, 2010, Garrett returned to the West Iowa Community Mental Health Center "feeling down about how things were going in his life[.]"[3] He met with Lia Clausen, M.S. Upon examination, Clausen noted that Garrett's mood was depressed and his affect was very tearful. Garrett reported feeling sad three to four days per week. He also stated that he struggled with trust issues and felt worthless, hopeless, and helpless. Clausen diagnosed Garrett with ...


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