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Gross v. Colvin

United States District Court, Eastern District of Arkansas, Northern Division

December 11, 2014

CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration DEFENDANT


Plaintiff Shonda N. Gross has appealed the final decision of the Commissioner of the Social Security Administration to deny her claim for disability insurance benefits and supplemental security income. Both parties have submitted appeal briefs and the case is ready for decision.[1]

The Court’s function on review is to determine whether the Commissioner’s decision is supported by substantial evidence on the record as a whole and free of legal error. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also 42 U.S.C. §§ 405(g). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996). In assessing the substantiality of the evidence, the Court has considered evidence that detracts from the Commissioner’s decision as well as evidence that supports it.

Ms. Gross alleged that she became limited in her ability to work by bipolar disorder, anxiety, and manic depression. (SSA record at p. 70) After conducting an administrative hearing, the Administrative Law Judge[2] (ALJ) concluded that Ms. Gross had not been under a disability within the meaning of the Social Security Act at any time through October 26, 2012, the date of his decision. (Id. at 27) On November 29, 2013, the Appeals Council received and considered additional evidence, then denied the request for a review of the ALJ’s decision, making the ALJ’s decision the final decision of the Commissioner. (Id. at 4-7) Ms. Gross then filed her complaint initiating this appeal. (Docket #2)

Ms. Gross was 34 years old at the time of the hearing. (SSA record at 775) She is a high school graduate in regular classes with two years of college. (Id.) She has past relevant work as a licensed practical nurse. (Id. at 26)

The ALJ found Ms. Gross had not engaged in substantial gainful activity since October 12, 2010, [3] her alleged onset date. (Id. at 14) He found that Ms. Gross had “severe” impairments: diabetes mellitus with neuropathy, headaches, back pain, pain disorder, obesity and depression. (Id.) He found she did not have an impairment or combination of impairments that met or equaled a Listing. (Id. at 14-15) He judged that Ms. Gross’s allegations regarding the intensity, persistence, and limiting effects of her symptoms were not totally credible. (Id. at 20)

Based on these findings, the ALJ concluded that Ms. Gross retained the residual functional capacity for light work, but could only occasionally climb, balance, stoop, bend, crouch, kneel and crawl. Additionally, she would have the ability to perform only in a work setting where interpersonal contact was incidental to the work performed, the complexity of the tasks would be learned and performed by rote with few variables, with little judgment and supervision required, and where instructions were simple, direct, and concrete. (Id. at 15)

Based on testimony from a vocational expert (VE), the ALJ concluded that Ms. Gross could not perform her past relevant work but could perform other jobs that existed in significant numbers in the national economy.[4] (Id. at 26-27) Thus, the ALJ concluded that Ms. Gross was not disabled. (Id. at 27)

Ms. Gross argues that the Appeals Council failed to properly consider a mental residual functional capacity questionnaire (“Questionnaire”) completed by Olympia Rosario, M.D., of Families, Inc. at her lawyer’s request four days after the ALJ found her not disabled. (#11 at p. 12) She maintains that the Questionnaire indicates difficulty in finding the “correct combination and dosage of medications.” (Id.)

When new and material evidence is submitted to the Appeals Council, [t]he Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of record. 20 C.F.R. § 404.970(b). The newly submitted evidence is to become part of what we will loosely describe here as the “administrative record, ” even though the evidence was not originally included in the ALJ’s record. Browning v. Sullivan, 958 F.2d 817, 823 n. 4 (8th Cir. 1992). If the Appeals Council does not consider the new evidence, a reviewing court may remand the case to the Appeals Council if the evidence is new and material. See Williams v. Sullivan, 905 F.2d 214, 217 (8th Cir. 1990). If, as here, the Appeals Council considers the new evidence but declines to review the case, we review the ALJ’s decision and determine whether there is substantial evidence in the administrative record, which now includes the new evidence, to support the ALJ’s decision. Browning, 958 F.2d at 823.

Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992)(footnote omitted).

It is clear that the Appeals Council considered the evidence Ms. Gross submitted.[5](SSA record at 4, 7) And there is substantial evidence in the record as a whole, including the Questionnaire, to support the ALJ’s determination.

The Questionnaire completed by Dr. Rosario is a check-the-box type of form in which she found Ms. Gross to be “unable to meet competitive standards” to perform work in a number of areas. (Id. at 766, 768) Dr. Rosario did not offer explanations for her conclusion, however, and there is no indication she performed any testing on Ms. Gross. (Id. at 768, 769, 771) According to the record, before completing the Questionnaire, Dr. Rosario saw Ms. Gross on three occasions – December 20, 2011, March 20, 2012, and June 26, 2012 – for medication checks. Each appointment lasted fifteen minutes.[6] Dr. Rosario’s minimal contact with Ms. Gross, along with the check-the-box format, incompleteness, and generality of her assessment limits the Questionnaire’s evidentiary value. Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001) (citing Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir. 1996)).

Ms. Gross complains that the ALJ erred in finding she was capable of performing a limited range of light, unskilled work. More specifically, she claims that, in making his RFC assessment, the ALJ underestimated the severity of her mental impairments and failed to account for her low Global Assessment of Functioning (“GAF”) scores and diabetic neuropathy.

The ALJ must determine a claimant’s residual functional capacity based on all relevant evidence, including medical records, observations of treating physicians and others, and the claimant’s own descriptions of her limitations. Tellez v. Barnhart, 403 F.3d 953, 957 ...

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