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Lacer v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

March 21, 2017

LISA R. LACER, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This is an action under 42 U.S.C. § 405(g) or judicial review of the final decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, denying the application of Plaintiff Lisa R. Lacer (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. (the “Act”). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 9). Because the decision denying benefits was supported by substantial evidence, the Commissioner's denial of Plaintiff's application will be affirmed.

         I. Factual Background

         On June 16, 2014, Plaintiff testified at a hearing before the Administrative Law Judge (“ALJ”). (Tr. 31-47). Plaintiff testified that she can no longer do her past work helping classroom teachers or doing sales because of her inability to focus, her anxiety being around people, and her level of stress. (Tr. 34-36). She testified that she has mood swings, has anger issues, has panic attacks four times a day, has crying spells two or three times a day, gets nervous in groups of people, has severe depression in the wintertime, gets agitated if she has done something wrong, and has racing thoughts that make her unable to focus. (Tr. 39-45). She also testified that due to arthritis and a back injury, she has trouble lifting 15 or 20 pounds, can stand for only about 30 minutes before it becomes too painful, and can sit for only 10 to 15 minutes before becoming stiff. (Tr. 46-47).

         Plaintiff's treatment records show that every few months during the alleged disability period, Plaintiff sought treatment for swelling in her legs or for joint pain in her hands, knees, ankles, and/or feet; her treatment providers have diagnosed osteoarthritis, lumbar disc degeneration, and plantar fibromatosis; and they have recommended weight loss, non-narcotic medications, and orthotic inserts. (Tr. 232-39, 263-68, 277-79, 293-303, 316, 288-91). Plaintiff's treatment records also show that she sought regular treatment from a psychiatrist, Howard Ilizicky, M.D., for symptoms including depression, sleep disturbance, “pissy episodes, ” mood swings, forgetfulness, and racing thoughts; Dr. Ilizicky diagnosed her with bipolar disorder and anxiety and prescribed various medications, including Wellbutrin, Klonopin, and Prozac. (Tr. 247-57, 272-73, 287).

         The record contains opinion evidence from three sources regarding Plaintiff's mental functioning. On November 8, 2012, consultative examiner David Peaco conducted a psychological evaluation of Plaintiff. (Tr. 260). He diagnosed Plaintiff with bipolar disorder and assigned a Global Assessment of Functioning (“GAF”) score of 55, indicating moderate symptoms. (Tr. 261).[2] He opined that Plaintiff was able to understand and remember simple instructions; that her persistence in completing tasks was mildly impaired; that her concentration was markedly impaired; that her social functioning was moderately impaired; and that her capacity to function effectively with the world around her was moderately impaired due to persistent symptoms of bipolar disorder. (Tr. 262).

         On November 19, 2012, state agency psychological consultant Robert Cottone, Ph.D., reviewed the record and issued an opinion. (Tr. 56-60). He opined that Plaintiff was markedly limited in the ability to understand and remember detailed instructions; markedly limited in the ability to carry out detailed instructions; moderately limited in the ability to maintain attention and concentration for extended periods; moderately limited in the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; moderately limited in the ability to work in coordination with or in proximity to others without being distracted by them; moderately limited in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace; moderately limited in the ability to interact appropriately with the general public; moderately limited in the ability to accept instructions and respond appropriately to criticism from supervisors; moderately limited in the ability to get along with coworkers or peers; and moderately limited in the ability to set realistic goals or make plans independently of others. (Tr. 59-60). He concluded that Plaintiff was capable of engaging in at least simple work tasks and would perform best in a position that did not include dealing with the public that involved only limited interaction with peers. (Tr. 60).

         On August 15, 2013, Plaintiff's treating psychiatrist, Dr. Ilizicky, filled out a Medical Source Statement. (Tr. 274-76). He found that Plaintiff had marked limitations in her ability to understand and remember complex instructions, to carry out complex instructions, and to make judgments on complex work-related decisions, but had only mild limitations in the ability to understand, remember, and carry out simple instructions and to make judgments on simple work-related decisions. (Tr. 274). Dr. Ilizicky further opined that Plaintiff had marked limitations in her ability to interact appropriately with the public, supervisors, and co-workers, and to respond appropriately to usual work situations and changes in a routine work setting. (Tr. 275). He indicated that these limitations were supported by her severe mood swings, unstable emotions, periods of extreme mania lasting four to five years, and inability to predict how she will interact on a day-to-day basis. (Tr. 274-75). He also indicated that at times she has extreme racing thoughts that make most functioning difficult. (Tr. 275). He stated that she had experienced a gradual decline in overall function. (Tr. 274).

         II. Procedural Background

         On September 13, 2012, Plaintiff applied for DIB, alleging that she had been unable to work since December 5, 2011, due to bipolar disorder, sleep apnea, and depression. (Tr. 128, 137-40, 165). Her application was initially denied, and Plaintiff requested a hearing before an ALJ. (Tr. 64, 76-77). After a hearing, the ALJ issued an unfavorable decision dated July 21, 2014. (Tr. 11-22). Plaintiff filed a request for review, and on November 23, 2015, the Appeals Council denied Plaintiff's request for review. (Tr. 1-3). Plaintiff has exhausted all administrative remedies, and the decision of the ALJ stands as the final decision of the Commissioner of the Social Security Administration.

         III. Standard for Determining Disability Under the Act

         To be eligible for benefits under the Social Security Act, a claimant must prove he or she is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec'y of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled a person who 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 twelve months.” 42 U.S.C. § 423(d)(1)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The impairment must be “of such severity that [the claimant] 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. § 423(d)(2)(A).

         To determine whether a claimant is disabled, the Commissioner engages in a five-step evaluation process. 20 C.F.R. § 404.1520(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then he is not disabled. 20 C.F.R. § 404.1520(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the Commissioner determines whether the claimant has a severe impairment, which is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities”; if the claimant does not have a severe impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c); McCoy, 648 F.3d at 611. At Step Three, the Commissioner evaluates whether the claimant's impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R. § 404.1520(a)(4)(iii); McCoy, 648 F.3d at 611. If the claimant has such an impairment, the Commissioner will find the claimant disabled; if not, the Commissioner proceeds with the rest of the five-step process. 20 C.F.R. §§ 404.1520(d); McCoy, 648 F.3d at 611.

         Prior to Step Four, the Commissioner must assess the claimant's “residual functional capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R. § 404.1520(e). At Step Four, the Commissioner determines whether the claimant can return to his past relevant work, by comparing the claimant's RFC with the physical and mental demands of the claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f); McCoy, 648 F.3d at 611. If the claimant can perform his past relevant work, he is not disabled; if the claimant cannot, the analysis proceeds to the next step. Id. At Step Five, the Commissioner considers the claimant's RFC, age, education, and work experience to determine whether the claimant can make an adjustment to other work in the national economy; if the claimant cannot make an adjustment to other work, the claimant will be found disabled. 20 C.F.R. § 404.1520(a)(4)(v); McCoy, 648 F.3d at 611.

         Through Step Four, the burden remains with the claimant to prove that he is disabled. Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that, given the claimant's RFC, age, education, and work experience, there are a significant number of other jobs in the national economy ...


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