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Duncan v. Colvin

United States District Court, D. South Dakota, Northern Division

March 31, 2015

CINDY LYNN DUNCAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ON SOCIAL SECURITY APPEAL OPINION AND ORDER

CHARLES B. KORNMANN, District Judge.

Plaintiff brought this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of defendant's final decision denying plaintiffs claim for disability insurance benefits. I have conducted a de novo review of the record. I find that the Commissioner's decision is supported by substantial evidence on the record as a whole.

BACKGROUND

Plaintiff Cindy Duncan was born in 1957 and has a history of poor physical health. In 2000, she was comatose and hospitalized. She has had a lumbar laminectomy and discectomy. Unfortunately, her medical care for quite some time was poor, at best. She routinely went to "cash clinics" where the treatments were abysmal. Several of her treatment records are oflittle use, as they contain little more than weight or blood pressure. One of her health care providers had patients sign a waiver acknowledging that the provider did not have medical malpractice insurance. Her later medical history is a bit more complete, including a visit to Doctor Villamagna in St. Petersburg, Florida, where he wrote that "klonopin has been helpful for 12 years... (it) allows her to work and perform duties as telemarketer (sic), no dizziness, no transient involuntary movements." Much of the plaintiffs medical history seems to contradict itself, but more recent examinations indicate fewer problems with the defendant's health.

The plaintiff filed a Title II application for a period of disability and disability insurance benefits on July 8, 2010. The plaintiff also filed a Title XVI application for supplemental security income on July 8, 2010. In both applications, the plaintiff alleged disability beginning on May I, 2009. Both claims were initially denied in November, 2010, and again in December, 2010. Plaintiff then filed a written request for a hearing, which was subsequently held on May 17, 2012, in Florida. The Administrative Law Judge ("ALJ") that conducted the hearing found that the plaintiff had not been under a disability (within the meaning of the Social Security Act) from May, 1, 2009 through the present. The plaintiff timely filed this present action on January 21, 2014, after exhausting all administrative remedies. Plaintiff contends the ALJ erred by applying an incorrect standard of law to support his findings and that the decision reached is not supported by substantial evidence. This Court has jurisdiction pursuant to 42 U.S.C. §405(g) and 42 U.S.C. § 1383(c)(3).

DECISION

An individual is considered to be disabled if, inter alia, he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual shall be determined to be disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).

"To be eligible for disability insurance benefits, a claimant has the burden of establishing the existence of a disability under the Act." Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Judicial review of the Commissioner's decision that claimant has failed to establish by a preponderance of the evidence that she is not disabled within the meaning of the Social Security Act is limited to determining whether the Commissioner's decision is supported by substantial evidence in the record as a whole. Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013). "Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion." Kamann v. Colvin, 721 F.3d at 950 (quoting Kelley v. Callahan, 133 F.3d 583, 587 (8th Cir.1998)). "We consider both evidence that detracts from the ALJ's decision, as well as evidence that supports it, but we will not reverse simply because some evidence supports a conclusion other than that reached by the ALJ." McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (internal citations omitted). "If, after reviewing the record, the court finds 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 [ALJ's] decision." Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).

The ALJ used the familiar five-step sequential evaluation to determine disability:

In step one, the ALJ decides whether the claimant is currently engaging in substantial gainful activity; if the claimant is working, [she] is not eligible for disability insurance benefits. In step two, the ALJ determines whether the claimant is suffering from a severe impairment. If the claimant is not suffering a severe impairment, [she] is not eligible for disability insurance benefits. At the third step, the ALJ evaluates whether the claimant's impairment meets or equals one of the impairments listed in Appendix 1 of the regulations (the "listings"). If the claimant's impairment meets or equals one of the listed impairments, [she] is entitled to benefits; if not, the ALJ proceeds to step four. At step four, the ALJ determines whether the claimant retains the "residual functional capacity" (RFC) to perform his or her past relevant work. If the claimant remains able to perform that past relevant work, [she] is not entitled to disability insurance benefits. If [she] is not capable of performing past relevant work, the ALJ proceeds to step five and considers whether there exist work opportunities in the national economy that the claimant can perform given his or her medical impairments, age, education, past work experience, and RFC. If the Commissioner demonstrates that such work exists, the claimant is not entitled to disability insurance benefits.

McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (internal C.F.R. citations omitted).

The ALJ used the five-step sequential evaluation from McCoy. He found that the plaintiff had not engaged in substantial gainful activity since May 1, 2009, which was the alleged onset date of the plaintiffs disability. He found that the claimant had the following severe impairments: degenerative disc disease, obesity, and tremors, stating that "they are more than slight abnormalities that have more than a minimal effect on the claimant's ability to perform basic work activities." The ALJ determined that those impairments, either standing alone or combined, did not meet the severity requirements of 20 CFR Part 404, Subpart P, Appendix 1 (404.1520(d), 4041526, 416.920(d), 416.925 and 416.926). As such, the ALJ found that the plaintiff had the residual functional capacity to perform light work, noting"... claimant [is] able to lift 20 pounds occasionally and 10 pounds frequently, stand or walk for six hours per day, and sit for six hours per day. However, the claimant is unable to climb ladders, ropes, or scaffolds. The claimant is able to balance, stoop, kneel, crouch, crawl, and climb ramps or stairs frequently. The claimant must avoid vibration, hazardous machinery, and heights." He found the plaintiff capable of returning to her past work as a telemarketer. Due to his finding in step four, the ALJ was not required to proceed to step five. Plaintiff claims the ALJ committed reversible error by (1) failing to order a psychological consultative examination, (2) failing to find a mental impairment "severe, " (3) failing to assess credibility in accordance with legal criteria, and (4) failing to properly conduct a "residual functional capacity" assessment.

1. Failure to Order a Psychological Consultative Examination

Plaintiff contends that the ALJ erred by failing to develop neuropsychological or psychological evidence, primarily by failing to order a psychological consultative examination ("CE"). The record shows that plaintiffs prior counsel made both a written and an oral request for a psychological CE, and those requests were denied after a hearing, based on an examination performed by Doctor Rabinowitz and a telephonic conversation the plaintiff had with a Disability Determination Services ...


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