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Bowen v. Berryhill

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

December 29, 2017

TERRI L. BOWEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER [1]

          PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE.

         Terri L. Bowen (“Plaintiff”) seeks review of the decision of the Social Security Administration denying her applications for Disability Insurance Benefits and Supplemental Security Income from her alleged onset date of November 1, 2011 until July 29, 2014.[2] Because the Court finds that substantial evidence supports the decision to deny benefits for the period in question, the Court affirms the denial of Plaintiff's applications.

         I. Background and Procedural History

         In February 2012, Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income alleging she was disabled as of November 1, 2011 as a result of: arthritis, “chronic pain throughout body, ” right arm numbness, “hips give out, ” asthma, and chronic obstructive pulmonary disease (“COPD”). (Tr. 413-24). In May 2014, an administrative law judge (“ALJ”) conducted a hearing and, on August 20, 2014, entered a decision denying Plaintiff's applications for benefits.[3] (Tr. 134-54). On July 29, 2014, between the dates of Plaintiff's hearing and the ALJ's decision, Plaintiff underwent a mammogram and subsequently received a diagnosis of invasive ductal breast cancer. (Tr. 765-66).

         Plaintiff appealed the ALJ's decision and submitted new evidence of breast cancer. (Tr. 294-98). The Social Security Administration (“SSA”) Appeals Council vacated the ALJ's decision and remanded the case to a different ALJ for additional proceedings. (Tr. 155-57). In the remand order, the SSA Appeals Council directed the ALJ, in relevant part, to: “Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 404.1545 and 416.945 and Social Security Ruling 96-8p).” (Id. at 157).

         Pursuant to the remand order, the ALJ conducted a hearing on August 25, 2015. (Tr. 33-68). An impartial medical expert, Dr. Lee Fischer, Plaintiff, and a vocational expert testified at the hearing. Id. In a partially favorable decision dated October 14, 2015, the ALJ applied the five-step evaluation set forth in 20 C.F.R. §§ 404.1520 and 416.920[4] and concluded: “[Plaintiff] was not disabled prior to July 29, 2014[, the date of her breast cancer diagnosis, ] but became disabled on that date and has continued to be disabled through the date of this decision[.]” (Tr. 20) (citations to regulations omitted).

         The ALJ found that, since the alleged onset date of disability (November 1, 2011), Plaintiff had the severe impairments of: osteoarthritis, right shoulder impingement, COPD, and mild degenerative disc disease; and the non-severe impairments of hypertension, headaches, obesity, and hyperactive bladder. (Tr. 13). After reviewing Plaintiff's testimony and medical records and finding that Plaintiff was “not entirely credible, ” the ALJ found that, between November 1, 2011 and July 29, 2014, Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work with specified limitations. (Tr. 14). The ALJ further determined that, since November 1, 2011, Plaintiff was unable to perform any past relevant work, but, for the period between November 1, 2011 and July 29, 2014, there existed a significant number of jobs in the national economy that she was capable of performing. (Tr. 18).

         Plaintiff filed a request for review of the ALJ's decision with the SSA Appeals Council, which denied review on January 12, 2016. (Tr. 1-5) Plaintiff has exhausted all administrative remedies, and the ALJ's decision stands as the SSA's final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         II. Standard of Review

         A court must affirm the ALJ's decision if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence ‘is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion.'” Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996) (quoting Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). In determining whether the evidence is substantial, a court considers evidence that both supports and detracts from the Commissioner's decision. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). However, a court “do[es] not reweigh the evidence presented to the ALJ and [it] defer[s] to the ALJ's determinations regarding the credibility of testimony, as long as those determinations are supported by good reason and substantial evidence.” Renstrom v. Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012) (internal quotation marks omitted) (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)).

         “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.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). The Eighth Circuit has repeatedly held that a court should “defer heavily to the findings and conclusions” of the Social Security Administration. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001).

         III. Discussion

         Plaintiff claims substantial evidence does not support the ALJ's determination that she was not disabled from November 1, 2011 through July 29, 2014. (ECF No. 18). Plaintiff contends that the ALJ erred in failing to: (1) comply with the SSA Appeals Council's remand order; and (2) accord “any weight to the lay evidence of onset.” (Id. at 8-15). In response, Defendant asserts that: (1) the ALJ complied with each of the SSA Appeals Council's directives; (2) substantial evidence supported the ALJ's RFC finding; and (3) the ALJ properly evaluated the third-party statements of record. (ECF No. 25).

         A. Failure to comply with remand order

         Plaintiff contends that the ALJ did not comply with the SSA Appeals Council's order to “give further consideration to the Plaintiff's maximum functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations.” (ECF No. 18 at 8-12). Although couched in terms of a failure to comply with the remand order, Plaintiff, in fact, argues that, in formulating her RFC, the ALJ failed to: (1) adequately address Plaintiff's COPD and pain in her shoulder, neck, and back; and (2) assign proper weight to the opinion of Plaintiff's treating physician. Id. Defendant counters that the ALJ complied with the remand order in that he re-examined the entire medical record and cited the clinical findings and medical opinions that supported his RFC finding. (ECF No. 25 at 7). Defendant further asserts that the ALJ: (1) accounted for Plaintiff's COPD and musculoskeletal pain by limiting her to sedentary work; and (2) properly assigned reduced weight to the treating physician's opinion because it was inconsistent with the evidence as a whole. (Id. at 7-14).

         1. RFC determination

         RFC is “the most [a claimant] can still do despite” his or her physical or mental limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). See also Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). “The ALJ should determine a claimant's RFC based on all relevant evidence including the medical records, observations of treating physicians and others, and an individual's own description of his limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (quoting Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006)). The claimant bears the burden of “persuasion to prove disability and ...


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