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Frankfurt v. Commissioner of Social Security

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

September 5, 2019

JOHN FRANKFURT, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          Kelly K.E. Mahoney Chief United States Magistrate Judge

         Plaintiff John Frankfurt seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his 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. Frankfurt argues that the administrative law judge (ALJ), John E. Sandbothe, erred in determining his residual functional capacity (RFC). Specifically, Frankfurt argues that the ALJ did not give good reasons for failing to fully credit his subjective complaints and the medical opinions from his treating neurologist and psychiatrist and that substantial evidence does not support the ALJ's failure to include several limitations in his RFC. I recommend affirming the ALJ's decision.

         I. BACKGROUND[1]

         Frankfurt has suffered from migraines since the age of 10, but he testified that they have progressively worsened with time. AR 23, 74.[2] He also suffers from depression and a gambling addiction. AR 23, 79, 84.

         Frankfurt graduated from high school in 1999 and worked full-time for eleven years at Wal-Mart as the manager of the toy department. AR 54, 307-08. He quit in March 2010 and has not worked since. AR 54, 307. He testified that he quit because of worsening migraines, as well as trouble getting along with supervisors, but the ALJ found that he quit because he felt he was not being treated or paid fairly (which is supported by substantial evidence, despite Frankfurt's argument otherwise). AR 26, 54-55, 57-58; see AR 111 (prior ALJ decision noted that although Frankfurt testified that he stopped working at Wal-Mart because of worsening migraines in late 2009 and early 2010, treatment records-which are not in the current administrative record-reflected that he did not seek “any treatment for worsening headache symptoms” during that time period and that he told a “therapist that he quit his job at Wal-Mart because he felt he was not being treated or paid fairly”); AR 369 (Frankfurt's friend and former coworker stated in third-party letter to Social Security Administration that Frankfurt quit job at Wal-Mart because “[t]hey changed the way that they did things” and he had “trouble adjusting to what management wanted, ” although he also stated that Frankfurt's migraines and depression worsened in 2010 and that Frankfurt called in sick to work several times due to migraines); AR 411 (Frankfurt told emergency room (ER) providers in March 2014 that he lost job at Wal-Mart due to migraines); AR 577 (Frankfurt told neurologist in December 2014 that “[b]y 2008-2009 he had so much nausea and [headaches] every day that he was suicidal[ and] . . . ended up having to quit his job and became very depressed”); AR 600 (Frankfurt's therapist stated in June 2015 letter to Social Security Administration that when she “began seeing him in 2008, he was barely able to maintain his job at Wal-Mart”; that he “reported migraines several times a week and persecutory delusions related to his supervisors and customers”; that he quit his job at Wal-Mart in 2008; and that “therapy sessions between 2010 and 2012 focused on his gambling addiction but also on him finding another job, ” and although “[h]e made a few inquiries about employment, ” he “never followed through on applying”); AR 646 (Frankfurt told psychiatrist in April 2015 that he quit working at Wal-Mart because “he was having more gambling problems and increased depression”); AR 773-97 (Frankfurt's Botox treatment records from 2015 to 2017 reflect he quit “because of headaches and depression”); AR 814 (Frankfurt told ER providers in May 2016 that he “lost” job at Wal-Mart “due to recurrent migraines, which caused excessive absenteeism”).

         At the time Frankfurt quit his job, he lived with his long-time girlfriend, and she and his family supported him during his unemployment. AR 79, 600, 660, 666, 685-86, 704, 706-07, 712, 727, 812, 814. Frankfurt's gambling addiction caused strife with his family and his girlfriend: Frankfurt estimated that since 2003, he has lost more than $900, 000 gambling, “absorb[ing] his mother's finances and family fortune, ” but he continued to expect his girlfriend and family to give him money and became upset when they did not (leading providers to diagnose him with antisocial personality disorder). AR 411, 416, 418, 449, 454, 456-57, 491, 600-01, 645, 683-84, 773, 812, 814. He and his girlfriend broke up for good in August 2015, and he moved out, first into a hotel and then into an apartment paid for by his family. AR 660, 666, 712. His gambling lessened due to lack of funds, and he executed a self-exclusion ban from casinos sometime in 2016 to prevent himself from gambling. AR 79, 673-74, 687, 704, 706-07, 710, 712.

         Frankfurt filed prior applications for disability benefits in January 2012, which an ALJ denied on September 20, 2013, after a hearing. AR 98, 114. When the Appeals Council denied review in February 2015, Frankfurt protectively filed the current applications for DI and SSI benefits, alleging disability beginning in 2010 (as he had in his prior applications). AR 98, 119, 127. The Social Security Administration denied those applications initially in April 2015 and upon reconsideration in September 2015. AR 127-85. In connection with those reviews, state agency psychological consultants Russell Lark, PhD, and Lon Olsen, PhD, reviewed Frankfurt's file and issued opinions evaluating his mental RFC (AR 134-36, 163-66), and state agency medical consultants Chrystalla Daly, DO, and Jan Hunter, DO, issued opinions evaluating his physical RFC (AR 132-34, 161-62).

         Frankfurt requested review by an ALJ. The ALJ held a video hearing on June 27, 2017, at which Frankfurt and a VE testified. AR 20, 70-71. On August 29, 2017, the ALJ issued a written opinion following the familiar five-step process outlined in the regulations[3] to find Frankfurt was not disabled. AR 20-33. The ALJ found that res judicata barred reconsideration of the prior ALJ decision and accordingly, determined the relevant time period began September 21, 2013, the day after Frankfurt's prior applications were denied. AR 20. The ALJ determined that Frankfurt suffered from several severe impairments, including depression, anxiety, antisocial personality disorder, migraines, and gambling addiction. AR 23. To evaluate whether Frankfurt's impairments prevented him from performing his past or other work (at steps four and five), the ALJ determined Frankfurt's RFC[4]:

[Frankfurt] has the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: [Frankfurt] can occasionally climb, balance, stoop, kneel, crouch, and crawl. He should have no exposure to hazards and no exposure to extreme noise. He can perform simple, routine work with no contact with the public, and no fast rate pace requirement.

         AR 24-25. In determining Frankfurt's RFC, the ALJ considered the medical opinions from the state agency consultants, assigning them substantial weight, as well as medical opinions from Frankfurt's treating neurologist and treating psychiatrist, which the ALJ assigned little weight. AR 28-29, 31, 653-56, 669-72. Based on his determination of Frankfurt's RFC, as well as his age, education, and work experience, the ALJ found that a significant number of jobs existed that Frankfurt could perform, including kitchen helper, laundry worker, and cleaner/housekeeper. AR 32. Therefore, the ALJ concluded that Frankfurt was not disabled. AR 32-33.

         The Appeals Council denied Frankfurt's request for review on May 29, 2018 (AR 1-4), making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. Frankfurt filed a timely complaint in this court, seeking judicial review of the Commissioner's decision (Docs. 1, 4). See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 15, 18, 21), and the Honorable Leonard T. Strand, Chief Judge of the United States District Court 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).

         Frankfurt challenges the ALJ's RFC determination. Frankfurt argues that the ALJ did not give good reasons for discounting his subjective complaints. Frankfurt also argues that the ALJ erred in assigning greater weight to the medical opinions of the nonexamining state agency consultants than to the medical opinions submitted by his treating neurologist and psychiatrist. Frankfurt argues that these errors resulted in an RFC that is not supported by substantial evidence and that specifically, the ALJ erred by failing to include limitations in his RFC reflecting Frankfurt's extreme limitations in maintaining attention and concentration; inability to work on a regular, sustained basis for 20% of the workday; marked limitations in performing within a schedule, maintaining attendance, and being punctual; and absences from work four or more times a month. Frankfurt's last argument depends on the success of his first two ...


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