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Bantz v. Berryhill

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

February 22, 2018

LAURA L. BANTZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Kelly K.E. Mahoney United States Magistrate Judge

         Plaintiff Laura L. Bantz 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. Bantz argues that the administrative law judge (ALJ), Eric S. Basse, erred in determining residual functional capacity (RFC) because he discredited Bantz's subjective allegations without identifying inconsistencies in the record as a whole and did not include all of Dr. Russell Lark's limitations after giving great weight to Dr. Lark's RFC opinion. I recommend that the Commissioner's decision be affirmed.

         I. BACKGROUND[1]

         Bantz was born without a right hand, and she also suffers from carpal tunnel syndrome and ulnar neuropathy in her left arm and hand, obesity, and mental impairments. AR 19, 81.[2] She lives with her husband and cares for their small child, who was born in 2010. AR 51, 279, 525. She has not worked since March 2008. AR 279. She previously worked for years assisting people with disabilities in performing their activities of daily living in their homes. AR 41-43, 279. She testified that she initially quit that job because it was becoming too difficult for her to lift people, so she found work as a job coach, training people with disabilities with the skills they needed to perform their job duties. AR 42-46. She testified that she ended up quitting and returning to her previous work due to numerous complaints made by her coworkers regarding her ability to get along with people. AR 42, 45-46. After she returned to her previous employment, her supervisor accused her of stealing confidential information, and she testified that she “did[ not] feel [she] could stay at that job and work for that person anymore.” AR 42-43. She then worked part-time at a gas station from January to March 2008, manning the cash register, cleaning, and cooking donuts and pizza. AR 39-41, 43, 279. She quit due to an inability to get along with her coworkers, who complained that she was not able to cook and count change as quickly as everyone else. AR 40. Bantz's work history made her eligible for DI benefits for disability established on or before December 31, 2013. AR 17.

         Bantz has been treated for depression since at least 1998 and anxiety since at least 2008. AR 53, 341-42. Starting in June 2012, Bantz began treatment with psychiatrist Dr. Mark Mittauer, who diagnosed her with depression, anxiety, and a general mood disorder that could include bipolar disorder. AR 292-97. Dr. Mittauer prescribed medications for Bantz's mental health diagnoses, and Bantz routinely visited Dr. Mittauer for medication checks. AR 292-97, 298-302, 306-07, 552-57, 567-72, 594-98, 616. At each appointment, Dr. Mittauer assigned Bantz a global assessment of functioning (GAF) score, which generally indicated only mild to moderate mental-health symptoms. AR 23, 294, 297, 300, 302, 305-06, 553, 555, 557, 561, 568-69, 572, 598. Bantz met with a licensed social worker for a therapy consultation in April 2013, with one follow-up two weeks later, but that is the extent of counseling she appears to have received. AR 303-305.

         Treatment notes reflect Bantz first reported difficulties with her left hand in June 2011. AR 491-92. On September 13, 2013, Bantz underwent an electromyography (EMG) study. AR 310-13. Based on the EMG results, Dr. Craig Dove, the interpreting physician, diagnosed Bantz with left carpal tunnel syndrome and left ulnar neuropathy but classified the conditions as “mild.” AR 312-13. On September 17, 2013, Bantz received her EMG results and was instructed to try Ibuprofen and a wrist brace for pain. AR 436. On August 13, 2015, Bantz underwent a second EMG study. AR 602-03. Dr. Thomas Rogers, the interpreting physician, found no evidence of left median or ulnar neuropathy and no evidence of left cervical radiculopathy. AR 603. Dr. Rogers found that the EMG was normal and that “her values [we]re slightly better than her previous study in 2013.” Id. Dr. Rogers recommended “conservative measures including trying to avoid leaning on her elbow.” Id.

         Bantz filed an application for DI benefits on September 12, 2013, alleging a disability onset date of March 8, 2008. AR 17, 81, 174-80. Her application was denied initially and on reconsideration. AR 17, 80-107. In connection with those reviews, state agency consultants from the Iowa Disability Determination Service evaluated Bantz's physical and mental RFC:[3] physical RFC assessments were completed by Laura Griffith, D.O., on November 5, 2013, and by Matthew Byrnes, D.O., on February 13, 2014; and a mental RFC assessment was completed by Russell Lark, Ph.D., on February 25, 2014.[4]AR 86-88, 99-104.

         Bantz requested a hearing before an ALJ, and a video hearing was held on September 4, 2015. AR 17, 33-34, 128-29, 142. Both Bantz and vocational expert (VE) Carma A. Mitchell testified at the hearing. AR 33-34. On October 23, 2015, the ALJ issued a written opinion, following the familiar five-step process outlined in the regulations[5] to determine Bantz was not disabled. AR 17-27. The ALJ found that Bantz suffered from the severe impairments of congenital absence of the right hand, left carpal tunnel syndrome, left ulnar neuropathy, obesity, bipolar affective disorder, mood disorder, and generalized anxiety disorder. AR 19. To determine whether Bantz's impairments prevented her from working, the ALJ determined Bantz's RFC through the date last insured:

[Bantz] had the [RFC] to perform light work . . . except she had no limits in standing, walking, or sitting, but had no use of her right, upper extremity to reach, handle, or finger. However, [Bantz] could use her left, upper extremity to lift or carry 20 pounds occasionally and 10 pounds frequently, but she could handle and finger with that appendage no more than frequently. [Bantz] was also precluded from climbing ladders, ropes, and scaffolds, and finally, she could have no more than occasional interaction with the public, co-workers, or supervisors.

AR 21.

         In evaluating Bantz's RFC, the ALJ considered treatment records, Bantz's statements about her symptoms (which the ALJ did not fully credit), statements from Bantz's mother, the mental RFC opinion of Dr. Mittauer (to which the ALJ gave little weight), and the RFC opinions of the state agency consultants (to which the ALJ gave great weight). AR 21-25. Based on his determination of Bantz's RFC, the ALJ found that although Bantz could not perform her past work, a significant number of jobs existed in the national economy that Bantz could perform, such as counter clerk, parking lot attendant, restroom attendant, and conveyer line tender. AR 25-27.

         The Appeals Council denied Bantz's request for review on November 9, 2016 (AR 1-4), making the ALJ's decision that Bantz was not disabled the final decision of the Commissioner. See 20 C.F.R. § 404.981. Bantz filed a timely complaint in this court (Doc. 3). See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 13-15), 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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