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Lema v. Berryhill

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

December 7, 2017

LISA JO LEMA, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Kelly K. E. Mahoney, United States Magistrate Judge

         Plaintiff Lisa Jo Lema seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance (DI) benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Lema contends that the Administrative Law Judge (ALJ), Barbara J. Welsch, erred in determining Lema's residual functional capacity (RFC), that the ALJ's RFC determination is not supported by substantial evidence, and that the ALJ did not prove other work exists that Lema could perform. For the reasons that follow, I affirm the Commissioner's decision.

         I. BACKGROUND[2]

         Lema suffers from lower back pain, neck pain, some shoulder and leg pain, and migraines. AR 203, 213, 233, 353.[3] On August 10, 2012, she applied for disability benefits with an alleged onset date of June 1, 2012. AR 68-69, 133. Her claim was first denied on October 10, 2012, and upon reconsideration on January 18, 2013. AR 94, 101. Lema requested an administrative hearing on March 20, 2013. AR 107-08. The ALJ conducted a video hearing on Mach 25, 2014, with Lema appearing by video from Davenport, Iowa, and the ALJ appearing in Peoria, Illinois. AR 22, 40. Lema testified at the hearing, along with vocational expert (VE) George B. Paprocki. AR 22, 39. Lema appeared at the hearing without counsel. AR 22, 40-42.

         On May 2, 2014, the ALJ issued a written opinion, following the familiar five-step process outlined in the regulations[4] for determining whether Lema was disabled. AR 22-33. The ALJ determined that Lema had the following severe impairments: “spine impairments with back and neck pain and some shoulder and leg pain, and migraines.” AR 24. The ALJ also found that Lema suffered from non-severe mental impairments of depression and adjustment disorder. Id. The ALJ found Lema had the RFC:

to perform light (and sedentary) work . . . because of possible pain exacerbation including headaches and possible medication side effects, she should not climb ladders, ropes, or scaffolds or work at unprotected heights; and she should not perform jobs that require over shoulder work.

AR 26.[5] The ALJ then found, based on testimony by the VE, that a significant number of jobs existed in the national economy that Lema could perform, including office helper and photo copy machine operator (both light work), and document preparer and envelope addresser (both sedentary work). AR 32-33. Accordingly, the ALJ found that Lema was not disabled. AR 33.

         The Appeals Council denied Lema's request for further review on September 3, 2015 (AR 7-11), making the ALJ's decision that Lema was not disabled the final decision of the Commissioner. See 20 C.F.R. § 404.981. The Appeals Council admitted additional information into the record, including statements from Lema, new third party statements, and medical records from May 8, 2014, through June 10, 2014. AR 7, 10. The Appeals Council also granted Lema an extension to seek further review and Lema filed a timely complaint in this court on April 11, 2016. Docs. 1, 3. The parties briefed the issues and with their consent this case was assigned to a United States magistrate judge for final judgment. Doc. 8, 15, 21.

         II. DISCUSSION

         A court must affirm the ALJ's decision if it “is supported by substantial evidence in the record as a whole.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); see also 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Kirby, 500 F.3d at 707. When determining whether substantial evidence supports the ALJ's decision, the court considers all the evidence before the ALJ but “do[es] not reweigh the evidence or review the factual record de novo.” Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994); accord Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court “must search the record for evidence contradicting the [ALJ'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). The court must “evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.” Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987).

         If, after reviewing the evidence, “it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [ALJ's] findings, [the court] must affirm the decision.” Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992). In other words, substantial evidence may support the ALJ's decision “even if [the court] might have weighed the evidence differently.” Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). “The concept of substantial evidence . . . embodies a zone of choice within which the [ALJ] may decide to grant or deny benefits without being subject to reversal on appeal.” Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988).

         Lema argues that the ALJ improperly weighed her subjective complaints and that substantial evidence on the record as a whole does not support the ALJ's RFC determination. Lema also argues the ALJ failed to adequately develop the record regarding the effects of Lema's migraines and the side effects of her medication. Finally, Lema argues the ALJ failed to prove a significant number of jobs exist in the national economy that Lema could perform. I will address these arguments in turn.

         A. The ALJ's RFC Determination

         1. Weight Given to Lema's Subjective Complaints

         Lema primarily argues the ALJ erred by failing to consider the entire medical record. In making this argument, Lema points to portions of the record she believes support her subjective complaints and argues that under Cripe v. Apfel, 21 F.Supp.2d 944 (N.D. Iowa 1998), the ALJ improperly “cherry-picked” from the record. In Cripe, the court found the ALJ erred in rejecting the treating physician's opinion because there were no other medical opinions to support the ALJ's findings, and rather than fully considering the treating physician's records, the ALJ “selectively quoted from [the physician's] treatment notes, isolating any statement that minimized the plaintiff's condition.” 21 F.Supp.2d at 949. This case is distinguishable. Here, the overall record, including multiple treatment notes and medical opinions (as discussed further below), supports the ALJ's findings. Also, the ALJ here considered information in the record that both supported and contradicted Lema's testimony. See AR 27-31. In essence, Lema argues the ALJ “should have weighed the[] facts differently or drawn different conclusions, ” but under the deferential standard of review, this court does not reweigh the evidence presented to the ALJ. Hensley v. Colvin, 829 F.3d 926, 934 (8th Cir. 2016). As discussed below, I find the ALJ provided good reasons for the weight given to Lema's subjective complaints and that substantial evidence from the record as a whole supports this finding.

         When evaluating a claimant's subjective complaints, including pain, the ALJ must consider the factors set forth in Polaski v. Heckler: “(1) the claimant's daily activities; (2) the duration, frequency, and intensity of the pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions.” Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998); accord Polaski, 739 F.2d 1320, 1321-22 (8th Cir. 1984), vacated, 476 U.S. 1167 (1986), reinstated, 804 F.2d 456 (8th Cir. 1986).[6] ÔÇťOther relevant ...


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