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Kinzebach v. Berryhill

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

January 19, 2018

DIANE KINZEBACH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Kelly K. E. Mahoney United States Magistrate Judge.

         Plaintiff Diane Kinzebach's application for disability insurance (DI) benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, is before the court for a second time: the court previously reversed a decision of the Commissioner of Social Security (the Commissioner) denying Kinzebach benefits for failing to provide a “good reason” for discounting the residual functional capacity (RFC) opinion of Kinzebach's treating physician, Dr. James Peterson. On remand from this court, the administrative law judge (ALJ) found that Dr. Peterson's RFC opinion was inconsistent with the record as a whole and again denied Kinzebach benefits. Kinzebach appeals, arguing that the ALJ erred in weighing the medical-opinion evidence, including Dr. Peterson's opinion, and her subjective complaints. I recommend that the Commissioner's decision be affirmed.

         I. BACKGROUND [1]

         Kinzebach filed applications for DI benefits in August 2007 and February 2009, alleging disability beginning on August 21, 2007, due to her past colon cancer and resulting bowel problems, problems with her legs (pain and neuropathy), and (for the first time in the 2009 application) back pain. AR 306, 348. The ALJ found (and neither party challenges) that Kinzebach was eligible for DI benefits for a disability established on or before September 30, 2012, making the relevant time period August 21, 2007, to September 30, 2012. AR 1217.

         Her applications were denied initially and on reconsideration. AR 76-78. In connection with those reviews, state agency consultants evaluated her physical RFC[2]: Dr. Judy Panek in November 2007 and Dr. Chrystalla Daly in April 2009. AR 520-25, 623-29.[3] Before the ALJ hearing, Kinzebach submitted an additional physical RFC opinion from her primary care physician, Dr. Peterson, which he completed on June 28, 2010. AR 744-48.

         Kinzebach's first video hearing before an ALJ occurred on August 26, 2010, and a few months later, the ALJ denied her request for DI benefits. AR 58, 82-94. The Appeals Council vacated and remanded that decision, finding that the ALJ needed to resolve the following issues:

• [Dr. Peterson] opined that the claimant could work for four hours a day at a light lifting level, and could sit/stand 30 minutes at a time with occasional postural limitations. The [ALJ] provided some weight to these limitations, but did not specifically discuss the limitation that the claimant could work for only four hours a day. Further evaluation of this opinion is necessary.
• The decision indicates that the claimant had the [RFC] to perform a range of light work, but could only “walk three blocks.” The length of time the claimant can walk . . . is unclear. Further evaluation of the claimant's [RFC] is necessary.
• The hearing decision includes “bowel incontinence” as a severe impairment, but no associated limitations are provided in the [RFC] assessment.

AR 101 (citations omitted). The Appeals Council instructed the ALJ on remand to obtain and address additional evidence concerning Kinzebach's physical RFC, to give further consideration to Dr. Peterson's RFC opinion, and to provide further explanation of the ALJ's RFC limitations “with specific references to evidence of record in support.” AR 102-03. A second hearing was held on March 14, 2013, and a second ALJ opinion issued the next month, again denying Kinzebach DI benefits. AR 18-34, 43. In addition to the RFC opinions discussed above, the ALJ considered a letter date January 5, 2012, from physician assistant Angela Schreiber (PA Schreiber) and an opinion dated September 24, 2012, by one-time consultative examiner and physician assistant Robert Welshons (PA Welshons), which was also signed by Dr. Adam Roise. AR 29-30, 842, 1142-44.

         The Appeals Council denied Kinzebach's request for review, and she appealed the ALJ's decision to this court.[4] AR 1318, 1325-44. The court held that the ALJ did not give “good reasons” for rejecting Dr. Peterson's RFC opinion. AR 1343. The court reasoned:

At various points in his decision, the ALJ points out instances where Kinzebach indicated that her pain was less or better, and she was able to function fairly well. However, the ALJ completely ignores evidence in the record where Kinzebach's signs and symptoms show greater pain and functional limitations. . . . [I]n his decision, the ALJ focuses on instances where Kinzebach's back pain appeared better in January and February 2012, . . . gloss[ing] over the fact that she underwent back surgery in May 2012.

         AR 1341-42. The court further reasoned that the ALJ did not cite to specific evidence in the record inconsistent with Dr. Peterson's RFC opinion and that the ALJ did not address Dr. Peterson's opinion that Kinzebach could work only four hours a day, which the Appeals Council had instructed the ALJ to address on remand. Id. The court reversed the ALJ's decision and remanded for further proceedings, ordering that on remand “the ALJ shall provide clear reasons for accepting or rejecting Dr. Peterson's opinion[]” with support from the record. AR 1344.

         A third video hearing was held on November 24, 2015, this time before ALJ Eric S. Basse, who had not presided over the prior proceedings. AR 1245. On March 30, 2016, the ALJ issued the third (and final) opinion denying Kinzebach DI benefits. AR 1217-33. As with the previous opinions, the ALJ followed the familiar five-step process outlined in the regulations[5] to determine whether Kinzebach was disabled. As before, the ALJ found that Kinzebach suffered from the following severe impairments during the relevant time period: “history of rectal cancer, status post-surgery, chemotherapy and radiation; degenerative disc disease of the lumbar spine; [and] status-post back surgery May 2012.” AR 20, 1219. In determining Kinzebach's RFC, the ALJ found that she could perform light work, which requires standing for six hours and sitting for two hours in an eight-hour day, [6] except:

[S]he could lift 20 pounds occasionally and 10 pounds frequently. She could stand or sit throughout an 8-hour day with regular work breaks. She could walk 3 blocks at a time. She had to avoid ladders, ropes and scaffolds. She had to avoid work at heights. The claimant had to have ready [sic] available access to a bathroom.

AR 1221.[7] Based on this RFC, the ALJ found that Kinzebach could perform her past work as a receptionist and material clerk. AR 1232. Thus, the ALJ once again found that Kinzebach was not disabled. AR 1233.

         The Appeals Council denied Kinzebach's request for review on September 30, 2016 (AR 1207-10), making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. § 404.981. Kinzebach filed a timely complaint in this court, seeking judicial review of the Commissioner's decision (Doc. 2). See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 14-16), and the Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa, referred this case to me for a Report and Recommendation.

         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. The court “do[es] not reweigh the evidence or review the factual record de novo.” Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994). If, after reviewing the evidence, “it is possible to draw two inconsistent positions from the ...


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