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Riniker v. Berryhill

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

March 30, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Kelly K.E. Mahoney United States Magistrate Judge

         Plaintiff Patricia Ann Riniker 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. Riniker argues that the administrative law judge (ALJ) could not assign little weight to the opinion of her treating psychiatrist at step two of the disability determination because the record contained no other opinion evaluating the severity of her mental impairments. Relatedly, Riniker argues that the ALJ erred by finding she suffered no severe mental impairments at step two. Riniker also argues that the ALJ erred by failing to mention her lengthy work history when evaluating her subjective complaints. I affirm the ALJ's decision.

         I. BACKGROUND[1]

         Riniker worked as a secretary at a college for thirty-two years. AR 40-41.[2] Her job duties generally included answering the phone, filing, and inputting data from applications into the computer system. AR 41. She testified that she quit in February 2011 because she was doing the work of two people, which made her stressed and (in turn) depressed, and her primary care physician at the time recommended that she find another job. AR 41-42, 245. She worked at a temporary employment agency for a few months after that, but she testified that her health problems and the cost of health insurance (which was not provided through this new employment) caused her to quit. AR 42, 245. She began babysitting for her grandchildren a few days a week and working about ten hours a week at her husband's automobile repair business, making appointments and bookkeeping. AR 44, 46-48, 54-55, 250-51, 253-54, 266, 271, 339, 532, 534.

         Riniker has suffered from Raynaud's disease since the 1980s, a disease that causes her fingers, toes, and ears to feel numb or cold in response to cold temperatures or stress. AR 21, 340, 369, 450. She testified that she received treatment in 2012 and 2013 at Women's Health and Wellness, which has since closed, and she has been unable to track down her treatment records from this time. AR 42, 48. In February 2014, she began treatment for her Raynaud's disease with Dr. George Isaac, a rheumatologist. AR 369. Around June 2014, Dr. Isaac diagnosed Riniker with fibromyalgia and Sjogren's syndrome, an autoimmune disorder primarily marked by dry eyes and dry mouth. AR 479.

         Feeling “overwhelmed” by her health problems, Riniker began seeing psychiatrist Dr. Roger Shafer in July 2014 at the recommendation of Dr. Isaac. AR 479. Dr. Shafer diagnosed Riniker with depression and post-traumatic stress disorder (PTSD), prescribed medications, and referred her for therapy with licensed social worker Amy Mahoney[3](Therapist Mahoney). AR 480-81. Her first appointment with Therapist Mahoney occurred in August 2014. AR 532. Her treatment with Therapist Mahoney involved eye movement desensitization and reprocessing (EMDR) therapy for her PTSD symptoms, which stemmed from being sexually assaulted by her husband's boss more than twenty years ago and facing harassment from him after she and her husband filed a civil lawsuit. AR 534, 544.

         Riniker applied for DI benefits on January 5, 2014, alleging she had been disabled since January 1, 2012, due to Raynaud's disease, stress-induced headaches, stress-induced stomach problems, and migraine headaches. AR 70. Riniker's application for DI benefits was denied initially in March 2014 and on reconsideration in April 2014. AR 70-79, 81-90. As she had not alleged suffering any mental impairments (other than “stress-induced” physical problems), nor received any mental-health treatment or diagnoses at that time, no state agency psychological consultants evaluated the severity of her mental impairments and whether they limited her ability to function. Id.

         Riniker requested a hearing before an ALJ, and ALJ Tela L. Gatewood held a video hearing on August 17, 2015. AR 35. The case was transferred to ALJ Michael D. Shilling, who held a supplemental video hearing on November 18, 2015 (the transcript from which is not in the record). AR 19. On December 23, 2015, ALJ Shilling issued a written opinion following the familiar five-step process outlined in the regulations[4] to determine Riniker was not disabled. AR 19-28. At step one, the ALJ[5] determined that Riniker's work for her family did not rise to the level of substantial gainful activity. AR 21. At step two, the ALJ found that Riniker's Sjogren's syndrome, fibromyalgia, and Raynaud's disease constitute severe impairments, but not her depression or PTSD, since the ALJ found these impairments cause no “more than minimal limitation in [Riniker's] ability to perform basic mental work activities.” AR 22-23. To make this determination, the ALJ relied on treatment notes, function reports, and Riniker's activities of daily living. AR 22-23. The ALJ assigned “minimal weight” to a joint opinion signed by both Dr. Shafer and Therapist Mahoney, who had determined Riniker suffered from moderate and marked limitations in the categories of activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation (the ALJ found Riniker suffered from no more than mild limitations in these categories). AR 22-23, 599-601. The ALJ went on to find that Riniker's impairments did not meet or equal a listing (step three) and that she could perform her past relevant work as a secretary (step four) based on his determination of Riniker's residual functional capacity (RFC), [6] which included no mental limitations. AR 23-27.

         The Appeals Council denied Riniker's request for further review on July 28, 2016 (AR 1-3), making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. § 404.981. Riniker filed a timely complaint in this court (Doc. 4), seeking judicial review of the Commissioner's decision. See 20 C.F.R. § 422.210(c).


         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 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).

         Riniker argues that the ALJ erred at step two by failing to include her depression and PTSD as severe impairments. She also argues that the ALJ erred by discounting some of her subjective complaints without mentioning her lengthy work history, a factor which supports credibility.

         A. Step Two Determination

         Riniker challenges the ALJ's failure to include her PTSD and depression as severe impairments. At step two, once the ALJ determines that the claimant suffers from a medically determinable mental impairment, the ALJ must determine whether the impairment is severe by evaluating the degree of functional limitation it causes. 20 C.F.R. § 404.1520a(b)-(d) (2015).[7] An impairment is severe if it “significantly limit[s] [the claimant's] physical or mental ability to do basic work activities, ”-for example, the ability to “[u]nderstand[], carry[] out, and remember[] simple instructions; . . . [u]se . . . judgment; . . . [r]espond[] appropriately to supervision, [coworkers, ] and usual work situations; [or] . . . [d]eal[] with changes in a routine work setting.” Id. §§ 404.1520(c), 404.1521; see also Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011). In other words, a mental impairment is not severe if it “would have no more than a minimal effect on the claimant's ability to work.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003) (quoting Simmons v. Massanari, 264 F.3d 751, 755 (8th Cir. 2001)); accord 20 C.F.R. § 404.1520a(d)(1). “Severity is not an onerous requirement for the claimant to meet” (and has been described as a de minimus standard), “but it is also not a toothless standard.” Kirby, 500 F.3d at 708; Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989). The ALJ must apply a “special technique” to evaluate the severity of a mental impairment, considering the claimant's limitations in “four broad functional areas . . .: [a]ctivities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation.” 20 C.F.R. § 404.1520a(c)(3). Although subject to exception, as a general rule, if the claimant suffers no more than mild limitations in each category, the claimant's mental impairments are not severe. Id. § 404.1520a(d)(1).

         Here, the ALJ recognized that Riniker suffered from depression and PTSD, but he found that these impairments were not severe because “considered singly and in combination, [they] do not cause more than minimal limitation in the claimant's ability to perform basic mental work activities.” AR 22. The ALJ found that Riniker suffered from no more than mild limitations in the first three “broad functional areas” and that she suffered no episodes of decompensation of extended duration. AR 22-23. In making this determination, the ALJ did not credit Riniker's testimony that she has difficulties concentrating and staying on task, cries every day, suffers nightmares and poor sleep, and often experiences anxiety and paranoia when she leaves her house. AR 22, 43-44, 48-50, 59; see also AR 328-29. The ALJ also assigned minimal weight to Dr. Shafer and Therapist Mahoney's joint opinion that Riniker suffered decreased energy, nightmares, weekly severe panic attacks, and moderate difficulties in concentrating, social functioning, and performing activities of daily living, which would cause her to miss work more than four days a month. AR 599-601.

         Rinker argues that an opinion signed by her treating psychiatrist that she suffers from more than minimal mental limitations establishes, as a matter of law, that the step-two threshold is met. Doc. 22 at 8. But the Eighth Circuit has recognized that the ALJ may discount the opinion of a treating source at step two (just as an ALJ may discount the opinion of a treating source when evaluating a claimant's RFC). See Dixon, 353 F.3d at 606; Schafer v. Apfel, No. 99-1683, 1999 WL 721335, at *1 (8th Cir. Sept. 16, 1999) (per curiam); see also Ziemann v. Berryhill, No. 4:16 CV 1198 RWS/DDN, 2017 WL 5495795, at *3, *6 (E.D. Mo. Oct. 23, 2017), report and recommendation adopted, 2017 WL 5478616 (E.D. Mo. Nov. 15, 2017). As Riniker recognizes (Doc. 22 at 10-12), 20 C.F.R. § 404.1527(c) sets forth the factors an ALJ must consider when determining the weight to assign a medical opinion. Although the ALJ did not explicitly discuss each factor, such as Dr. Shafer being a treating source and a specialist, “[f]ailure to discuss each factor does not mean the ALJ did not consider them.” Molnar v. Colvin, No. 412-CV-1228-SPM, 2013 ...

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