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Strawhacker v. Berryhill

United States District Court, W.D. Arkansas, Fayetteville Division

August 22, 2017

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration[1] DEFENDANT



         Plaintiff, Robin L. Strawhacker, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her claim for supplemental security income (“SSI”) under the provisions of Title XVI of the Social Security Act (“Act”). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See 42 U.S.C. § 405(g).

         I. Procedural Background:

         Plaintiff received SSI benefits based on disability as a child. (ECF No. 10, pp. 21, 70). Plaintiff's eligibility for receipt of SSI benefits was reexamined under the rules for determining disability in adults when she attained the age of eighteen (18). (ECF No. 10, pp. 21, 68-72). On June 12, 2013, the Commissioner determined Plaintiff was no longer disabled as of June 1, 2013. (ECF No. 10, pp. 68-72). A disability hearing officer upheld the ruling following a hearing on January 3, 2014. (ECF No. 10, pp. 80-103).

         Thereafter, Plaintiff requested an administrative hearing and this hearing request was granted. (ECF No. 10, pp. 105-44). Plaintiff's administrative hearing was held on October 15, 2014, in Fayetteville, Arkansas (ECF No. 10, pp. 40-67). Plaintiff appeared in person and without attorney counsel. Id. Plaintiff, Plaintiff's grandmother and former guardian Elda Jean Faulkner, and Vocational Expert (“VE”) Larry Seifert testified at this hearing. Id. At the time of this hearing, Plaintiff was nineteen (19) years old, which is defined as a “younger person” under 20 C.F.R. § 416.963(c). As for her level of education, at the time of the hearing Plaintiff was still a senior in high school due to the amount of school she missed before her leukemia entered remission. (ECF No. 10, pp. 44-45).

         After this hearing, on January 14, 2015, the ALJ entered an unfavorable decision affirming cessation of Plaintiff's SSI benefits. (ECF No. 10, pp. 18-32). In this decision, the ALJ found Plaintiff attained the age of eighteen (18) on February 15, 2013 and was eligible for SSI benefits as a child for the month preceding the month in which she attained age eighteen (18) and that she was found no longer disabled as of June 1, 2013, after reevaluation of disability under the rules for adults who file new applications. (ECF No. 10, p. 23, Finding 1). The ALJ determined Plaintiff had the following severe impairments: leukemia in remission; recurrent sinusitis; amnestic disorder; cognitive disorder; and, depression. (ECF No. 10, p. 23, Finding 2). Despite being severe, the ALJ determined these impairments did not meet or medically equal the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Part 404 (“Listings”). (ECF No. 10, pp. 23-26, Finding 3).

         The ALJ then considered Plaintiff's Residual Functional Capacity (“RFC”). (ECF No. 10, pp. 26-31, Finding 4). First, the ALJ evaluated Plaintiff's subjective complaints and found her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC to perform “light work as defined in 20 C.F.R. § 416.967(b) except that she can only do work limited to simple, routine and repetitive tasks involving only simple, work related decisions with few, if any, workplace changes and no more than incidental contact with coworkers, supervisors, and the general public.” Id. The ALJ then determined Plaintiff had no Past Relevant Work (“PRW”). (ECF No. 10, p. 31, Finding 5). Based on Plaintiff's age, education, work experience, and RFC, the ALJ determined there were jobs existing in significant numbers in the national economy Plaintiff could perform, such as an office helper, a mail room sorter, and a merchandise marker. (ECF No. 10, pp. 31-32, Finding 9). The ALJ therefore determined Plaintiff's disability ended on June 1, 2013, and that Plaintiff had not become disabled again since that date. (ECF No. 10, p. 32, Finding 10).

         Thereafter, Plaintiff requested a review by the Appeals Council (ECF. No. 10, p. 17). The Appeals Council denied this request on April 19, 2016. (ECF No. 10, pp. 6-11). On June 14, 2016, Plaintiff filed the present appeal with this Court. (ECF No. 1). The parties consented to the jurisdiction of this Court on June 28, 2016. (ECF No. 6). This case is now ready for decision.

         11. Applicable Law:

         This Court's role is to determine whether substantial evidence supports the Commissioner's findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial evidence is less than a preponderance but it is enough that a reasonable mind would find it adequate to support the Commissioner's decision. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). We must affirm the ALJ's decision if the record contains substantial evidence to support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). As long as there is substantial evidence in the record that supports the Commissioner's decision, the court may not reverse it simply because substantial evidence exists in the record that would have supported a contrary outcome, or because the court would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). In other words, if after reviewing the record it is possible to draw two inconsistent positions from the evidence and one of those positions represents the findings of the ALJ, we must affirm the ALJ's decision. Id.

         A claimant for Social Security disability benefits has the burden of proving her disability by establishing a physical or mental disability that has lasted at least one year and that prevents her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); See also 42 U.S.C. § 1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 1382c(a)(3)(D). A Plaintiff must show that her disability, not simply her impairment, has lasted for at least twelve consecutive months.

         The Commissioner's regulations require her to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the claimant is able to perform other work in the national economy given his age, education, and experience. See 20 C.F.R. § 416.920(a)(4). Only if she reaches the final stage does the fact finder consider Plaintiff's age, education, and work experience in light of his residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. § 416.920(a)(4)(v).

         III. Discussion:

         Plaintiff raises three issues on appeal: 1) Substantial evidence does not support the ALJ's determination that Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments; 2) Substantial evidence does not support the ALJ's RFC determination; and 3) The hypothetical question posed to the VE and adopted by the ALJ failed to account for all of Plaintiff's limitations.

         A. The Listings

         The claimant bears the burden of proving her impairment meets or equals the criteria for a specific listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria." Brown ex rel. Williams v. Barnhart, 388 F.3d 1150, 1152 (8th Cir. 2004)(internal quotations and citation omitted). Where the claimant suffers from an unlisted impairment, the ALJ must compare the claimant's impairment with an analogous listed impairment. 20 C.F.R. § 416.926. Furthermore, the question is whether the ALJ "consider[ed] evidence of a listed impairment and concluded that there was no showing on th[e] record that the claimant's impairments . . . m[et] or are equivalent to any of the listed impairments." Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006) (internal quotations omitted). While it is preferable an ALJ address a specific listing, the failure to do so is not reversible error if the record supports the overall conclusion. See Pepper ex rel. Gardner v. Barnhart, 342 F.3d, 853, 855 (8th Cir. 2004), Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001); see also Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011) (“There is no error when an ALJ fails to explain why an impairment does not equal one of the listed impairments as long as the overall conclusion is supported by the record.”).

         First, Plaintiff contends her impairments meet or medically equal the criteria of Listing 3.02(A). Listing 3.02(A) requires a forced expiratory volume (FEV1) value less than or equal to the value specified in Table I of the listing corresponding to Plaintiff's height without shoes. 20 C.F.R. pt. 404, Subpt. P, app. 1, § 3.02(A). Plaintiff does not cite to nor does the record contain recent spirometry reports containing an FEV1 value. Plaintiff contends that the lack of such a record amounts to a failure to fully and fairly develop the record by the ALJ. The ALJ owes a duty to a claimant to develop the record fully and fairly to ensure his decision is an informed decision based on sufficient facts. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). However, the ALJ is not required to function as the claimant's substitute counsel, but only to develop a reasonably complete record. Whitman v. Colvin, 762 F.3d 701, 707 (8th Cir. 2014) (quoting Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994). While “[a]n ALJ should recontact a treating or consulting physician if a critical issue is undeveloped, ” “the ALJ is required to order medical examinations and tests only if the medical records presented to him do not give sufficient medical evidence to determine whether the claimant is disabled.” Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (quotation, alteration, and citation omitted). Although the ALJ determined Plaintiff's recurrent sinusitis was a severe impairment, the record shows the impairment did not result in more than mild or moderate respiratory impairment. For example, Plaintiff visited Dr. Payton on April 2, 2013, for sinus pressure, but Dr. Payton made no objective findings regarding Plaintiff's respiration. (ECF No. 10, p. 955). Dr. Payton did make objective findings regarding Plaintiff's respiration on November 28, 2012, and March 7, 2013, when Plaintiff complained of sinus problems, but Dr. Payton's physical examination revealed only normal findings in this area. (ECF No. 10, pp. 812, 819). Although the record does not contain a recent spirometry report, Plaintiff regularly followed-up with her healthcare providers and we can assume Plaintiff's healthcare providers would have conducted such testing were it necessary for her continued care.

         The ALJ had before him the evaluations and treatment records of numerous healthcare providers which provided sufficient evidence for the ALJ to make an informed decision regarding Plaintiff's alleged impairments. The Court also notes that other evidence in the record, including Plaintiff's own statements, constituted evidence regarding her limitations, and that the existing medical sources contained sufficient evidence for the ALJ to make a determination regarding whether Plaintiff's impairments met or medically equaled the severity of Listing 3.02(A). The Court therefore finds the ALJ satisfied his duty to fully and fairly develop the record and that substantial evidence supports the ALJ's determination with regard to Listing 3.02(A).

         Next, Plaintiff argues her impairments meet or medically equal the criteria of Listings 12.02, 12.04, and 12.07. The ALJ considered evidence of Plaintiff's listed mental impairments and concluded that there was no showing on the record that Plaintiff's impairments met or are equivalent to any of the listed impairments. Listings 12.02, 12.04, and 12.07 share the same paragraph “B” criteria. 20 C.F.R. pt. 404, Subpt. P, app. 1, §§ 12.02, 12.04, 12.07. For Listings 12.02 and 12.04, Plaintiff could alternatively satisfy the paragraph “C” criteria. Id. To meet the paragraph “B” criteria, Plaintiff's impairments must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace, or; repeated episodes of decompensation, each of extended duration. Id.

         Plaintiff does not meet the paragraph “B” criteria of listings 12.02, 12.04, or 12.07. At the outset, this Court notes that, as to periods of decompensation, the record does not indicate Plaintiff's impairments have caused any episodes of decompensation of extended duration, in recent years. The ALJ determined Plaintiff's impairments resulted in only a mild restriction in Plaintiff's activities of daily living. The ALJ accepted Plaintiff's function report, completed by Hiedi Oliver, which indicated she had some difficulty with personal care and personal chores, but that she was able to prepare simple meals, go out alone, and shop in stores. (ECF No. 10, pp. 24, 218-25). The ALJ also noted the remarks of Kim Oliver, Plaintiff's teacher, on her teacher questionnaire. (ECF No. 10, pp. 24, 195-202). Ms. Oliver indicated Plaintiff's reading and math abilities were appropriate for her level and that she did not receive special education services. (ECF No. 10, p. 195). Ms. Oliver gave Plaintiff high marks in the area of acquiring and using information and noted Plaintiff “is completely capable of all these skills, ” and described Plaintiff as “a bright young lady.” (ECF No. 10, p. 196).

         The ALJ determined Plaintiff had moderate difficulties in social functioning, based in part on Ms. Oliver's report but also based on Plaintiff's function report, completed by Elda Faulkner, which indicated Plaintiff kept to herself and became easily agitated. (ECF No. 10, pp. 24, 172-79). The ALJ also accepted the results of a Behavior Assessment System for Children - Second Edition (BASC-II) test administered by Dr. McInroe, which indicated Plaintiff had moderate limitation in this area. (ECF No. 10, p. 24, pp. 1129-133). Ms. Oliver indicated Plaintiff had no problem attending and completing tasks. (ECF No. 10, p. 197). Ms. Oliver further indicated Plaintiff was “very immature” and that “other students have trouble relating to her.” (ECF No. 10, p. 198). Nevertheless, Ms. Oliver described Plaintiff as “bright” and stated she “could be more successful, if not for excessive absences, ” and that she does interact with her peers, but in an immature manner. (ECF No. 10, p. 202).

         The ALJ also determined Plaintiff's impairments resulted in moderate limitations in her concentration, persistence or pace. (ECF No. 10, p. 24). The ALJ accepted Plaintiff's testimony and the Function Report completed by Ms. Faulkner, which indicated that Plaintiff's short-term memory retention was poor, and she had to do a task multiple times before she understood it. (ECF No. 10, pp. 24-25). The ALJ also noted, however, that Plaintiff was in regular classes and not receiving special education services. Id. The ALJ also accepted the opinion of Dr. McInroe who stated Plaintiff “exhibits deficits in short-term auditory memory and consolidation into longer-term memory. She also exhibits mild to moderate deficits in visual spatial memory.” (ECF No. 10, pp. 25, 1133).

         Plaintiff does not meet the paragraph “C” criteria of listings 12.02 or 12.04. The ALJ specifically considered the paragraph “C” criteria of Listings 12.02 and 12.04 and in each instance determined that Plaintiff's impairments did not: cause more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support; repeated episodes of decompensation, each of extended duration; a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause Plaintiff to decompensate, or; a current history of one or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.” (ECF No. 10, p. 25). Plaintiff contends the fact that Plaintiff still attends high school and lives with her grandmother and former guardian that she satisfies the paragraph “C” criteria of listings 12.02 and 12.04. The record contains no evidence, however, that Plaintiff remains the ward of her former guardian. The ALJ also determined that Plaintiff was still in high school because Plaintiff missed so much school because of her treatment for leukemia, which had been in remission for five years at the time of the administrative hearing. (ECF No. 10, p. 28). Although Plaintiff cites thirty-three (33) school absences for medical reasons, Plaintiff's teacher indicated seventeen (17) absences were excused for medical reasons and sixteen (16) absences were unexcused. (ECF No. 10, p. 195). Although, by any standard, Plaintiff has missed a substantial amount of school, this Court notes that the record does not contain any evidence of extended periods of decompensation.

         Based on the foregoing, The Court finds the ALJ met his duty when he considered the evidence of the listed impairments and concluded that there was no showing on the record that the claimant's impairments met or are equivalent to any of the listed impairments. Accordingly, I find substantial evidence supports the ALJ's determination that ...

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