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Greifzu-Hamric v. Berryhill

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

March 29, 2017

SUSAN L. GREIFZU-HAMRIC, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM AND ORDER

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE

         This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner determining that plaintiff Susan Greifzu-Hamric (“Plaintiff”) was no longer disabled, and therefore discontinuing her disability insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401, et seq. Plaintiff has filed a brief in support of the Complaint (Doc. No. 19), Defendant has filed a brief in support of the Answer (Doc. No. 26). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. No. 13).

         I. PROCEDURAL HISTORY

         On October 25, 2003, Plaintiff was found to be disabled due to ovarian remnant syndrome, with an initial onset date of August 1, 2001. (Tr. 226-229). This 2003 decision is the comparison point decision (“CPD”) against which her continuing disability is measured. Plaintiff underwent a medical improvement review on November 18, 2011, and on April 2, 2012, a disability examiner for the Social Security Administration filed an Explanation of Determination, stating that there had been significant medical improvement in Plaintiff's severe impairment and that she could perform work-related duties. (Tr. 223-225). As a result, Plaintiff was deemed “no longer disabled” as of April 1, 2012 and informed that her benefits would cease on June 30, 2012. (Id.). The determination was upheld by a state disability hearing officer on November 1, 2012. (Tr. 242-252). Plaintiff requested review by an Administrative Law Judge (“ALJ”), and a hearing was held on April 11, 2013. (Tr. 46-91). Supplemental hearings were held on March 24 and April 1, 2014. (Tr. 92-197, 198-222). Plaintiff attended and testified at each hearing. At the second hearing, rheumatologist Ann Winkler, M.D., clinical psychologist Richard Hutchison, Ph.D., and vocational expert Delores E. Gonzales testified. After the second hearing, the ALJ sent additional interrogatories to Dr. Winkler and received responses. (Tr. 788-790).

         The ALJ issued her Decision in this matter on September 2, 2014. (Tr. 21-38). She found that Plaintiff ceased being disabled as of June 30, 2012 and was therefore no longer eligible for disability benefits. (Tr. 38). Plaintiff in turn filed a Request for Review of Hearing Decision/Order on November 7, 2014, putting the matter in front of the Appeals Council. (Tr. 8-10). On December 7, 2015, the Appeals Council denied Plaintiff's request for review (Tr. 1-7). As such, the ALJ's decision stands as the final decision of the Commissioner. This suit followed.

         II. BACKGROUND

         Plaintiff is a 50 year-old woman, at the time of the hearings living with the youngest of her four children. (Tr. 55, 83). Prior to her initial disability, she worked in sales, most recently for Miller Brewing Company. (Tr. 144). That work involved riding along with distributers' employees on beer deliveries, setting up advertising displays, and occasionally helping to unload cases of beer. (Tr. 144). She attended college for two years. (Tr. 160).

         Her primary complaints revolve around pain in her neck, her back, and abdomen. At various times she has also complained about generalized fibromyalgia, inability to hold or carry things, incontinence when she attempts to pick things up, radiant pain in her arm and leg, blurred vision, dizziness, cognitive impairments (notably poor memory) and muscle weakness.

         On April 4, 2012, Plaintiff was involved in a motor vehicle accident. (Tr. 637). At the time, she denied having lost consciousness. (Tr. 639). She also reported no incontinence or motor weakness at follow-up appointments with her doctors 12 days, one month and three months after the accident. (Tr. 599, 602, 681-682).

         Plaintiff testified that she had both “good days” and “bad days” as to her back, neck and abdomen, and that on a “bad day” her son helps her use the bathroom. (Tr. 55). Plaintiff testified that she is never without pain, and that on a ten-point pain scale, her lower back can get as low as a three, her stomach can get down to a 2.5, but that her neck “averages about an eight.” (Tr. 67-68). In 2011, Plaintiff stated that she had chronic neck and back pain “for at least the last 20 years.” (Tr. 571). She testified that she cannot carry a purse or wear a necklace due to pain. (Tr. 82-83). Plaintiff testified that her neck hurts 24 hours a day, 7 days a week, and pain shoots down her arm. (Tr. 208). Plaintiff claimed that she can only lift and carry about four pounds (the weight of the smallest of her three dogs) on a regular basis (Tr. 83), and that she drops things “all the time” when her hands “go numb.” (Id.). She also claimed to suffer from fibromyalgia and have radiant, burning and throbbing pain in her spine. (Tr. 206-208). Plaintiff also claimed that she cannot bend, stoop or squat without pain (Tr. 215), that she had memory deficits (Tr. 214), and had intermittent blurred vision (Tr. 218). The ALJ also cited Plaintiff's testimony regarding her constipation and pain associated with both urination, which can make her need to lie down for half an hour afterward, (Tr. 219) and defecation, which at its worst either makes her lie down for two hours (Tr. 63) or leaves her in “a ball for four hours” (Tr. 218-219).

         In terms of treatment, Plaintiff testified that she takes opioid pain medication every day and has for an extended period of time, since at least 2001. (Tr. 55, 62, 660). Plaintiff noted that ice “helps a lot” and that she uses a transcutaneous electrical nerve stimulation (“TENS”) unit on her neck and back which “helps some.” (Tr. 66-67). She also gets massages at the mall. (Tr. 67). Plaintiff testified that she suffers from side effects from her pain medications, notably constipation and dizziness. (Tr. 62).

         III. LEGAL STANDARD

         Under 42 U.S.C. § 405(g) and Eighth Circuit case law, this Court reviews the final decision of the Commissioner to determine whether that decision is supported by substantial evidence on the record as a whole. See Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). Substantial evidence, in turn, is “less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). Thus, the decision of the Commissioner may not be reversed solely because this Court might have decided the case differently. Id. at 1022. Instead, this Court must simply determine whether the quantity and quality of evidence is enough so that a reasonable mind might find it adequate to support the Commissioner's conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001).

         Additionally, this Court will determine whether the Commissioner correctly applied the eight step process described at 20 C.F.R. § 404.1594 for determining whether Plaintiff continues to be disabled.

         At step one of this process, the Commissioner must determine if the Plaintiff is engaging in substantial gainful activity (“SGA”). If the Plaintiff is performing substantial gainful activity, the Plaintiff is no longer disabled. 20 C.F.R. § 404.1594(f)(1).

         At step two, the Commissioner must determine whether the Plaintiff has an impairment or combination of impairments which meets or medically equals the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).[2] If the Plaintiff has such impairments, her disability continues. 20 C.F.R. § 404.1594(f)(2).

         At step three, the Commissioner must determine whether medical improvement has occurred. 20 C.F.R. § 404.1594(f)(3). Medical improvement is any decrease in medical severity of the impairment(s) as established by improvement in symptoms, signs and/or laboratory findings. 20 C.F.R. § 404.1594(b)(1). If medical improvement has occurred, the analysis proceeds to the fourth step. If not, the analysis proceeds to the fifth step.

         At step four, the Commissioner must determine whether medical improvement is related to the ability to work. 20 C.F.R. § 404.1594(f)(4). Medical improvement is related to the ability to work if it results in an increase in the Plaintiff's capacity to perform basic work activities. 20 C.F.R. § 404.1594(b)(3). If medical improvement is not related to the Plaintiff's ability to work, the analysis proceeds to step five; if medical improvement is related to the Plaintiff's ability to do work, the analysis moves to step six.

         If the Commissioner found at step three that there was no medical improvement, or found at step four that the medical improvement is not related to the ability to work, then at step five, the Commissioner considers whether any of the exceptions at 20 C.F.R. § 404.1594(d) and (e) apply. If none of them apply, the Plaintiff's disability will be found to continue. If one of the first group of exceptions to medical improvement applies, the analysis proceeds to step six; if an exception from the second group of exceptions to medical improvement applies, the disability will be found to have ended.

         At step six, the Commissioner must determine whether the Plaintiff's current impairments when considered in combination are “severe, ” in that they significantly limit the Plaintiff's ability to do basic work activities. 20 C.F.R. § 404.1594(f)(6). If all current impairments in combination do not significantly limit the Plaintiff's ability to do basic work activities, the Plaintiff is no longer disabled. If they do, the analysis proceeds to the next step.

         At step seven, the Commissioner must assess the Plaintiff's residual functional capacity (“RFC”) based on the current impairments and determine if she can perform past relevant work. 20 C.F.R. § 404.1594(f)(7). If the Plaintiff has the capacity to perform past relevant work, her disability has ended. If not, the analysis proceeds to the last step.

         At the final step, the Commissioner must determine whether other work exists that the Plaintiff can perform, given her residual functional capacity and considering her age, education, and past work experience. 20 C.F.R. § 404.1594(f)(8). If the Plaintiff can perform other work, she is no longer disabled. If the Plaintiff cannot perform other work, her disability continues.

         It is not the job of the district court to re-weigh the evidence or review the factual record de novo. Cox, 495 F.3d at 617. Weighing the evidence is a function of the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). An administrative decision which is supported by substantial evidence is not subject to reversal merely because substantial evidence may also support an opposite conclusion or because the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.

         To determine whether the Commissioner's final decision is supported by substantial evidence, the court is required to review the administrative record as a whole and to consider:

(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant's treating physicians;
(4) The subjective complaints of pain and description of the claimant's physical activity and impairment;
(5) The corroboration by third parties of the claimant's physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions which fairly set forth the ...

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