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Allaire v. Commissioner of Social Security

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

July 18, 2019

CHARLENE ALLAIRE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          Kelly K.E. Mahoney, Chief United States Magistrate Judge

         Plaintiff Charlene Allaire seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for disability insurance (DI) benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and supplemental security income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Allaire argues that the ALJ erred by failing to consider whether her impairments met or equaled Listing 12.15, by assigning minimal weight to the medical opinions of her treating providers and the consultative examiner, and by formulating an inaccurate hypothetical for the vocational expert (VE). I recommend reversing the Commissioner's decision and remanding for an award of benefits.

         I. BACKGROUND

         [1]Over the years, prior to Allaire's alleged disability onset date, she has been steadily employed. See AR 328. She worked as a sales associate in a department store for more than fifteen years and testified that she left that job in 2008 because it was getting difficult to be on her feet all day as she got older (Allaire was born in 1966). AR 69, 328. She then worked as a bank teller for a year and went to school to become a medical assistant. AR 328, 1224. In April 2010, she put her schooling to use and began working in a group home, assisting people with disabilities in their activities of daily living. AR 67, 328.

         Allaire's difficulties began in November 2011 after a resident of the group home she worked at head-butted her twice in the head, with enough force that it gave Allaire a concussion. AR 462. She could not work for a month and a half due to dizziness and nausea symptoms caused by the concussion. AR 462-64. A doctor cleared her to go back to work with restrictions in early January 2012, but her symptoms still caused her to be unable to work some days, and the group home terminated her employment in early March 2012. AR 328, 464-67, 962-63. She found work in September 2012 as a nursing assistant at a hospital, drawing blood and taking vitals, but testified that her dizziness and other symptoms still limited her abilities and that she was “forced out” in October 2013 and ultimately fired in early 2014. AR 68, 328; see also 1276 (Allaire told providers in July 2013 that her impairments had caused her to miss a lot of work recently and that she struggled working even with her employer's accommodations). From March to August 2014, she worked the front desk at a doctor's office, checking patients in and out of their appointments, but resigned because she still suffered pain and dizziness that made it too difficult for her to work. AR 64-65, 328, 1302. After quitting, she filed the current applications for DI and SSI benefits. AR 19.

         Allaire's applications were denied initially and on reconsideration. AR 87-162. The ALJ held a video hearing on May 3, 2017, at which Allaire and a VE testified. AR 56-57. On June 6, 2017, the ALJ issued a written opinion following the familiar five-step process outlined in the regulations[2] to find Allaire was not disabled from September 1, 2014, to the date of the decision, the relevant time period. AR 19-31. The ALJ found that Allaire suffers from the severe impairments of degenerative disc disease, osteoarthritis, fibromyalgia, obesity, migraine headaches, post-concussion syndrome, depression, anxiety, and post-traumatic stress disorder (PTSD). AR 21. At step three, the ALJ determined that “[t]he claimant does not have an impairment or combination of impairments that meets or medically equals the severity of” a listed impairment. AR 22.

         The ALJ did not specifically analyze the applicability of Listing 12.15, even though Allaire's attorney had asked the ALJ to consider that Listing at the hearing. AR 22-23, 60. The ALJ did, however, specifically address other listings that contain similar requirements to Listing 12.15. AR 22-23.

         To evaluate whether Allaire's impairments prevented her from performing her past work (step four) or other work (step five), the ALJ determined Allaire's residual functional capacity (RFC)[3]:

[T]he claimant has the [RFC] to perform light work . . . except she could lift and carry 20 pounds occasionally and 10 pounds frequently; she could sit and stand or walk 6 hours in an 8-hour workday; she could not climb ladders but could occasionally climb stairs, balance, stoop, kneel, crouch, and crawl; she could tolerate occasional exposure to extreme cold, unprotected heights and hazardous machinery; she could perform simple, routine and repetitive tasks requiring no interaction with the public and occasional interaction with coworkers.

AR 24. To determine Allaire's RFC, the ALJ considered the medical opinions in the record (as well as other evidence), assigning little weight to the opinions of Allaire's primary care physician, John Lancaster, MD (AR 28-29); little weight to the opinion of Allaire's treating psychologist, Luke Hansen, PsyD (AR 28); minimal weight to the opinion of one-time consultative examiner Barbara Lips, PhD (AR 27-28); and great weight to the opinions of the nonexamining state agency consultants (AR 29). The ALJ found that Allaire could not perform her past work but that a significant number of jobs existed in the national economy that Allaire could perform (specifically, the ALJ found Allaire could work as a bakery worker, production assembler, or electrical accessory assembler). AR 30-31.

         The Appeals Council denied Allaire's request for review on February 27, 2018 (AR 5-7), making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. For good cause shown, the Appeals Council granted Allaire additional time to seek judicial review of the Commissioner's decision (AR 1), making Allaire's complaint timely filed in this court. See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 12, 14, 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 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).

         Allaire and the Commissioner dispute whether the ALJ's failure to specifically address Listing 12.15 constituted harmless error. Allaire also argues that the ALJ erred in discounting all the examining-source medical opinions in the record and by failing to include certain limitations in the hypothetical to the VE.

         A. Listing 12.15

         During the third step of the disability determination, the ALJ considers whether the claimant's impairment or combination of impairments meets or equals one of the listings of presumptively disabling impairments set forth at 20 C.F.R. part 404, subpart P, appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). “[A claimant's] impairment[] meets the requirements of a listing when it satisfies all of the criteria of that listing, including any relevant criteria in the introduction, and meets the duration requirement.” 20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3) (citation omitted). A claimant can equal the listings in one of three ways:

(1)(i) If [the claimant] ha[s] an impairment that is described in [the listings], but-
(A) [The claimant] do[es] not exhibit one or more of the findings specified in the particular listing, or
(B) [The claimant] exhibit[s] all of the findings, but one or more of the findings is not as severe as specified in the particular listing,
(ii) [The Social Security Administration] will find that [the claimant's] impairment is medically equivalent to that listing if [the claimant] ha[s] other findings related to [the] impairment that are at least of equal medical significance to the required criteria.
(2) If [the claimant] ha[s] an impairment(s) that is not described in [the listings], [the Social Security Administration] will compare [the claimant's] findings with those for closely analogous listed impairments. If the findings related to [the claimant's] impairment(s) are at least of equal medical significance to those of a listed impairment, [the Social Security Administration] will find that [the claimant's] impairment(s) is medically equivalent to the analogous listing.
(3) If [the claimant] ha[s] a combination of impairments, no one of which meets a listing, [the Social Security Administration] will compare [the claimant's] findings with those for closely analogous listed impairments. If the findings related to [the claimant's] impairments are at least of equal medical significance to those of a listed impairment, [the Social Security Administration] will find that [the claimant's] combination of impairments is medically equivalent to that listing.

20 C.F.R. §§ 404.1526(b), 416.926(b). “To prove that an impairment or combination of impairments equals a listing, a claimant ‘must present medical findings equal in severity to all the criteria for the one most similar listed impairment.'” KKC ex rel. Stoner v. Colvin, 818 F.3d 364, 370 (8th Cir. 2016) (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990)).[4]

         Allaire argues that the ALJ erred by failing to analyze whether her impairments met or equaled listing 12.15. The Commissioner responds that any error is harmless. The Eighth Circuit has consistently held that “[a]lthough it is preferable that ALJs address a specific listing, failure to do so is not reversible error if the record supports the overall conclusion.” Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003); see also Vance v. Berryhill, 860 F.3d 1114, 1118 (8th Cir. 2017); Scott ex rel. Scott v. Astrue, 529 F.3d 818, 822-23 (8th Cir. 2008); Karlix v. Barnhart, 457 F.3d 742, 746-47 (8th Cir. 2006). “[R]emand is appropriate [only] where the ALJ's factual findings, considered in light of the record as a whole, are insufficient to permit [a court] to conclude that substantial evidence supports the Commissioner's decision.” Scott, 529 F.3d at 822-23 (holding that remand was required when the record contained factual inconsistencies that the ALJ failed to resolve). Thus, even if the ALJ erred in failing to address Listing 12.15, remand is not required if the record shows Allaire's impairments did not equal that Listing.

         Listing 12.15, which governs “trauma- and stressor-related disorders, ” requires that a claimant's impairments meet or equal “paragraph A” criteria, as well as meet or equal either “paragraph B” or “paragraph C” criteria. 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.15. Although the ALJ did not specifically analyze Listing 12.15, the paragraph B and paragraph C criteria of Listing 12.15 are the same as the paragraph B and paragraph C criteria of the listings that the ALJ did specifically analyze: Listings 12.04 (“depressive, bipolar, and related disorders”), 12.06 (“anxiety and obsessive-compulsive disorders”), and 12.08 (“personality and impulse-control disorders”). Id. §§ 12.04, 12.06, 12.08, 12.15. Thus, even if the ALJ had considered Listing 12.15, the ALJ would have determined that the claimant's impairments neither met nor equaled that Listing, as the ALJ determined (in connection with her analysis of other listings) that the claimant's impairments satisfied neither the paragraph B nor the paragraph C criteria, without which a claimant's impairments cannot meet or equal Listing 12.15.

         Allaire argues that the ALJ's analysis of the applicability of the paragraph B criteria is not supported by substantial evidence.[5] Doc. 12 at 5-10. Paragraph B requires:

Extreme limitation of one, or marked limitation of two, of the following areas of ...

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