Opinion
21-cv-2718 (KMM) (LIB)
01-20-2023
Dominique S.,[1] Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Hon. Leo I. Brisbois United States Magistrate Judge
Plaintiff, Dominique S., (hereinafter “Plaintiff'), proceeding pro se, seeks judicial review of the decision of the Acting Commissioner of Social Security (“Defendant”) denying her application for disabled adult child's insurance benefits. The matter is before the undersigned United States Magistrate Judge for disposition pursuant to 28 U.S.C. § 636 and Local Rules 7.2(a)(1). This Court has jurisdiction over the claims pursuant to 42 U.S.C. § 405(g).
Both parties submitted cross-motions for summary judgment, and the Court took the matter under advisement on the parties' written submissions. [Docket Nos. 18, 22]. For the reasons discussed herein, the undersigned recommends that Plaintiff's Motion for Summary Judgment, [Docket No. 18], BE DENIED and Defendant's Motion for Summary Judgment, [Docket No. 22], BE GRANTED.
I. Procedural History
On June 13, 2014, Plaintiff filed an application for disabled adult child's insurance benefits (“DAC”),alleging that her disability began on January 1, 2013. (Tr. 39).On November 15, 2016, Plaintiff filed a Title XVI application for supplemental security income. (Tr. 39). Plaintiff also filed a Title II application for a period of disability and disability benefits on December 2, 2016. (Tr. 410-423). Plaintiff alleged that her disability was caused by impairments of “Gerd/scholiosis/myotonic dystrophy type i/bad hips,” “Heart disease/chronic back pain/dry eyes,” “Tongue & grip myotonia/weakness of muscles,” “Leukopenia/iga deficiency/allergies,” “Exercise induced asthma/hand tremors,” “Lactose deficiency/QT prolongation/thyroid problems,” and “Recurrent sinusitis/broken nasal septum & deviation.” (Tr. 463). The Commissioner initially denied all of Plaintiff's claims on January 18, 2017. (Tr. 269-281). However, upon reconsideration on July 14, 2017, the Commissioner found Plaintiff was disabled as of January 1, 2017, for purposes of her supplemental security income application, but the Commissioner denied Plaintiff's request for disability insurance benefits, as well as, her request for DAC benefits. (Tr. 282-295, 333-351). On September 13, 2017, Plaintiff filed a written request for a hearing before an Administrative Law Judge. (Tr. 297-302).
To obtain disabled adult child benefits based on the earnings of a parent, a claimant must demonstrate, among other things, that she was under 18 years of age, or that she was 18 years or older and suffered from a disability that began before she attained the age of 22. See 42 U.S.C. § 402(d); 20 C.F.R. §§ 404.350, 404.1505. Disability is determined using the adult disability standard. 20 C.F.R. § 404.1505.
Throughout this Order, the Court refers to the Administrative Record, [Docket No. 10], by the abbreviation “Tr.” The Administrative Record is consecutively paginated across 25 exhibits. (See Administrative Record [Docket No. 10). Where the Court cites to the Administrative Record, it refers to the page numbers found in the bottom-right corner of these exhibits.
Administrative Law Judge Micah Pharris (hereinafter “ALJ”) conducted a hearing on May 14, 2019. (Tr. 39). Plaintiff and her mother, Ruth S., testified at the hearing, along with an impartial medical expert, Joseph C. Horozaniecki, MD (“IME Horozaniecki”), and an independent vocational expert, Norman A. Mastbaum (“IVE Mastbaum”). (Tr. 39). On May 24, 2019, the ALJ issued a partially favorable decision, denying Plaintiff's request for DAC benefits, but awarding her disability benefits and supplemental security income beginning January 1, 2017. (Tr. 39-63).
Thereafter, Plaintiff sought review of the ALJ's decision by the Appeals Council challenging only the denial of DAC benefits. (Tr. 14). In doing so, Plaintiff submitted additional documents to the Appeals Council that she wanted considered as part of her request for reconsideration. (Tr. 16). On March 23, 2021, the Appeals Council informed Plaintiff of its decision to deny her request for review. (Tr. 15-21). Accordingly, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
In the letter noticing its decision, the Appeals Council stated that it had considered Plaintiff's additional documents. (Tr. 15-16). The denial also informed Plaintiff of her right to commence a civil action within sixty days from the date of receipt. (Tr. 17). But if needed, Plaintiff could request an extension of time with the Appeals Council to file the civil action. (Tr. 17). Thereafter, Plaintiff sought, and the Appeals Council granted four extensions for Plaintiff to file the present civil action. (Tr. 1-14).
On December 21, 2021, Plaintiff filed the present action. (Compl. [Docket No. 1]). Thereafter, both parties submitted cross-motions for summary judgment, and the Court took the matter under advisement on the written submissions. [Docket Nos. 18, 22].
II. Standards of Review
A. Administrative Law Judge's Five-Step Analysis
If a claimant's initial application for disability benefits is denied, she may request reconsideration of the decision. 20 C.F.R. §§ 404.907-404.909. A claimant who is dissatisfied with the reconsidered decision may then obtain administrative review by an administrative law judge (“ALJ”). 42 U.S.C. § 405(b)(1); 20 C.F.R. § 404.929.
To determine the existence and extent of a claimant's disability, the ALJ must follow a five-step sequential analysis. This analysis requires the ALJ to make a series of factual findings regarding the claimant's impairments, residual functional capacity, age, education, and work experience. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992). The Eighth Circuit has described this five-step process as follows:
The Commissioner of Social Security must evaluate: (1) whether the claimant is presently engaged in a substantial gainful activity; (2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003).
B. Appeals Council Review
If the claimant is dissatisfied with the ALJ's decision, she may request review by the Appeals Council; however, the Appeals Council need not grant that request for review. See 20 C.F.R. §§ 404.967-404.982. The decision of the Appeals Council (or, if the request for review is denied by the Appeals Council, then the decision of the ALJ) is final and binding upon the claimant, unless the matter is appealed to federal court within sixty days after notice of the Appeals Council's action. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981. In this case, the Appeals Council declined to review the ALJ's partially favorable decision denying Plaintiff DAC benefits. (Tr. 16).
C. Judicial Review
Judicial review of the administrative decision generally proceeds by considering the decision of the ALJ at each of the five steps. However, judicial review of the Commissioner's decision to deny disability benefits is constrained to a determination of whether the decision is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008); Tellez v. Barnhart, 403 F.3d 953, 956 (8th Cir. 2005); Buckner v. Apfel, 213 F.3d 1006, 1012 (8th Cir. 2000) (“We may reverse and remand findings of the Commissioner only when such findings are not supported by substantial evidence on the record as a whole.”). “Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007); Buckner, 213 F.3d at 1012 (quoting Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)).
In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact for that of the ALJ. Hilkemeyer v. Barnhart, 380 F.3d 441, 445 (8th Cir. 2004). The possibility that the Court could draw two inconsistent conclusions from the same record does not prevent a particular finding from being supported by substantial evidence. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). The Court should not reverse the Commissioner's finding merely because evidence may exist in the administrative record to support the opposite conclusion. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
After balancing the evidence in the record as a whole, if it is possible to reach two inconsistent positions from the evidence and one of those positions represents the Commissioner's decision, the court must affirm the decision. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992); Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009) (quotation omitted). Thus, the court will not reverse the ALJ's “denial of benefits so long as the ALJ's decision falls within the ‘available zone of choice.'” Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008). The decision of the ALJ “is not outside the ‘zone of choice' simply because [the Court] might have reached a different conclusion had [it] been the initial finder of fact.” Id.
The claimant bears the burden under the Social Security Act of proving that she is disabled. See 20 C.F.R. § 404.1512(a); Whitman v. Colvin, 762 F.3d 701, 705 (8th Cir. 2014). Once the claimant has demonstrated she cannot perform prior work due to a disability, the burden then shifts to the Commissioner to show that the claimant retains the residual functional capacity (“RFC”) to engage in some other substantial, gainful activity. Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005).
III. Decision Under Review
Before beginning the five-step disability evaluation process, the ALJ first determined that Plaintiff had not attained age 22 as of January 1, 2013, the alleged disability onset date, and that Plaintiff met the insured status requirement of the Social Security Act through June 30, 2019. (Tr. 42). This finding is not in dispute.
Thereafter, the ALJ made the following determinations during the five-step disability evaluation process.
At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity (“SGA”) since January 1, 2013. (Tr. 42). In doing so, the ALJ noted that Plaintiff worked after the alleged onset date but that the work activity did not rise to the level of SGA. (Tr. 42). This finding is not in dispute. The Court will refer to the period of time between the date Plaintiff last engaged in SGA, January 1, 2013, and the date Plaintiff attained age 22, March 7, 2015, as “the adjudicated period.”
At step two, the ALJ concluded that, during the adjudicated period, Plaintiff had the following severe impairments: myotonic dystrophy; bilateral hip degenerative joint disease and impingement/labral tear status post surgeries; scoliosis and Bertoletti syndrome with low back pain; pre-syncopal episodes related to postural orthostatic tachycardia; hypersomnia related to myotonic dystrophy; Reynaud's syndrome; and asthma. (Id.). These findings are in dispute.
At step three, the ALJ concluded that, during the adjudicated period, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 43). Specifically, the ALJ found that Plaintiff's “physical impairments were not manifested at a level of severity” which met or medically equaled listings 1.02, 1.04, 3.03, 4.00, and 11.13. (Id.). Plaintiff does not challenge the ALJ's findings at step three.
At step four, the ALJ made the following RFC determination:
[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: the claimant may never climb ropes, ladders, or scaffolds, kneel, crouch, or crawl; and may occasionally climb ramps and stairs, balance, and stoop; the claimant may do no power gripping or power torqueing bilaterally; the claimant may have no exposure to unprotected heights, concentrated levels of airway irritants, or hazards.(Tr. 44-45). The ALJ determined that this RFC applied to Plaintiff through to the age she turned 22. (Tr. 45). Plaintiff challenges this RFC determination made by the ALJ.
In making this RFC determination, the ALJ, considering the record, as a whole, found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms;” however, the ALJ also found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms [were] not fully supported prior to January 1, 2017, for the reasons explained in [the ALJ's] decision.” (Tr. 46). Plaintiff does not specifically challenge this credibility finding by the ALJ.
The ALJ next found that Plaintiff had no past relevant work. (Tr. 54). Plaintiff does not challenge this finding.
Finally, the ALJ concluded at step five that “[c]onsidering the [Plaintiff's] age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the [Plaintiff] could have performed” during the adjudicated period. (Tr. 55). Relying upon testimony from IVE Mastbaum, the ALJ specifically found that, among the representative occupations, Plaintiff would have been able to perform the requirements of office helper (Dictionary of Occupational Titles No. 239.567-010) of which there were about 70,000 positions in the national economy; cashier II (Dictionary of Occupational Titles No. 211.462-010) of which there were about 1,500,000 positions in the national economy; and route aid (addressing and packaging or repacking) (Dictionary of Occupational Titles No. 222.587-038) of which there were about 40,000 positions in the national economy. (Tr. 55). Other than an implicit challenge based on Plaintiff's challenges to step two and step four, Plaintiff does not directly challenge the ALJ's findings at step five.
Therefore, the ALJ found that Plaintiff was not under a disability, as that term is defined by the Social Security Act, at any time during the adjudicated period for purposes of DAC benefits. (Tr. 56).
The ALJ's analysis did not end there. The ALJ conducted a separate analysis of Plaintiff's impairments beginning January 1, 2017. The ALJ found that Plaintiff became disabled on January 1, 2017, and continued to be disabled through the date of the ALJ's decision for purposes of disability benefits and supplemental security income because she met the requirements of Listing 11.13 for muscular dystrophy. (Tr. 56-62). Plaintiff does not challenge this finding.
IV. Analysis
The arguments that Plaintiff makes in her pro se memorandum in support of her motion consist mainly of generalized assertions that Plaintiff is entitled to DAC benefits due to errors committed by the ALJ, including a perceived lack of evidence supporting the ALJ's factual and legal determinations. When Plaintiff's memorandum in support of her motion is construed liberally in her favor, Plaintiff appears to be arguing that: 1) the RFC was not supported by substantial evidence due to several purported deficiencies; 2) the ALJ erred in finding that Plaintiff's gastroesophageal reflux disease (“GERD”), dry eyes, and hypermobility were nonsevere in step two of the sequential process; and 3) despite having been provided a release form, the ALJ failed to fully develop the record by not requesting certain medical records that existed before she attained age 22. (Plf.'s Mem., [Docket No. 19]).
The Court considers each of the foregoing issues in the order of the five-step disability process, beginning at step two.
A. Step Two-Medically Determinable Impairments
Plaintiff argues that the ALJ erred by not finding her GERD, dry eyes, and hypermobility were each severe and disabling at step two of the sequential evaluation. (Plf.'s Mem., [Docket No. 20], at pp. 9-13). In other words, Plaintiff appears to argue that the ALJ misweighed the evidence in the record in making his determination and that other evidence in the record could support a finding that Plaintiff's GERD, dry eyes, and hypermobility symptoms were harsher, and thus, were each a severe impairment. This argument fails for the reasons explained below.
As previously discussed, the Commissioner uses a five-step evaluation to determine if a claimant is disabled. See Simmons v. Massanari, 264 F.3d 751, 754 (8th Cir. 2001); 20 C.F.R. § 416.920(a)(4). Step two of the evaluation states that a claimant is not disabled if her impairments are not “severe.” Simmons, 264 F.3d at 754; 20 C.F.R. § 416.920(a)(4). An impairment is not severe if it amounts only to a slight abnormality that would not significantly limit the claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137 at 153 (1987); Id. at 158 (O'Connor, J., concurring); 20 C.F.R. § 404.1521(a). If the impairment would have no more than a minimal effect on the claimant's ability to work, then it does not satisfy the requirement of step two. Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007). It is the claimant's burden to establish that her impairment or combination of impairments are severe. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). Severity is not an onerous requirement for the claimant to meet, see Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989), but it is also not a toothless standard, and courts have upheld on numerous occasions the Commissioner's finding that a claimant failed to make this showing. See, e.g., Page, 484 F.3d at 1043-44; Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003); Simmons, 264 F.3d at 755; Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997); Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996).
Turning first to Plaintiff's GERD,the ALJ found that, while Plaintiff was diagnosed with reflux, there was no evidence to suggest the diagnosis would result in more than minimal work-related restrictions. In support, the ALJ cited to treatment notes from Minnesota Gastroenterology which spanned from October 2012 to November 2018. (Tr. 42, 700-718, 1421-1447). In reviewing those treatment notes from within the adjudicated period, the Court finds that Plaintiff did report experiencing reflux symptoms, but those symptoms were easily and well controlled with medication. See Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (quoting Brace v. Astrue, 578 F.3d 882, 885 (8th Cir. 2009)) (“If an impairment can be controlled by treatment or medication, it cannot be considered disabling.”). For example, in December 2013, Plaintiff appeared for a follow-up gastroenterology visit with Dr. Lucinda Conroy for her reflux and reported that, while she experienced reflux symptoms one to four times a day, she did get relief when taking Tums. (Tr. 710). Plaintiff also reported having a good appetite, stable weight, and no dysphagia or odynopagia. (Tr. 710). The next follow-up gastroenterology visit did not occur until more than one year later, in March 2015, when Plaintiff appeared with her mother, requesting an endoscopy for “longstanding reflux,” but also reporting that her reflux symptoms were “fairly well controlled” on Zantac and that a ground flaxseed regimen had “helped tremendously.” (Tr. 707-709).
Plaintiff's medical records refer to complaints of heartburn, acid reflux, or reflux. For purposes of this decision, however, the Court refers to these symptoms as GERD in accordance with Plaintiff's argument.
It is undisputed that the adjudicated period during which Plaintiff must establish her alleged disability for DAC benefits is from January 1, 2013, through March 24, 2015, the date she turned 22 years old. See, e.g., Comegys v. Chater, 105 F.3d 662 (8th Cir. 1997); Laveau v. Astrue, No. 11-cv-505 (SRN/LIB), 2012 WL 983598, at *19 (D. Minn. Feb. 14, 2012), report and recommendation adopted, 2012 WL 983630 (D. Minn. Mar. 22, 2012); Jackson v. Apfel, 162 F.3d 533, 539 (8th Cir. 1998). Therefore, to the extent Plaintiff relies on evidence that is dated after the adjudicated period (or after she attained 22 years of age), it will not be considered by the Court in determining whether the ALJ erred at step two of the sequential process or whether the ALJ's RFC was supported by substantial evidence, as discussed in more detail, infra.
In support of her present argument, Plaintiff merely summarizes only the portions of the evidence from the record which she believes could support a finding that her GERD condition was severe and seeks to recharacterize the whole of the evidence already considered by the ALJ. For example, Plaintiff asserts that, despite “tak[ing] multiple prescribed medications and multiple over the counter (“OTC”) medications many times a day,” the record demonstrates that her GERD symptoms were not cured but have been “present daily all in [her] life”; that the symptoms “[have] never [been] fully controlled” because she still experiences “breakthrough symptoms at least four times daily”; and her “history of ‘gastritis, esophagitis delayed stomach emptying, bile reflux is well documented” by biopsies and endoscopies. (Plf''s Mem., [Docket No 19], at p. 11). In support, however, Plaintiff cites to her own subjective self-reported symptoms included in Dr. Conroy's treatment notes the very records also cited by the ALJ.
Plaintiff further asserts that, as a symptom associated with her myotonic dystrophy (which was found to be a severe impairment at step two), the ALJ erred in failing to consider “how limiting [her] GERD [was],” because the breakthrough symptoms exacerbated her asthma and resulted in recurrent pneumonia and respiratory infections. (Id. at p. 13). Plaintiff also asserts that the medications she took to treat her GERD symptoms caused “multiple side effects” with “adverse reactions, some severe,” and the “[s]tress related to this while being at work and not being able to control [her] symptoms may also [have] contribute[d] to development of arrythmia.” (Id.). However, Plaintiff fails to cite to any medical evidence or opinion evidence in the record demonstrating any work-related limiting effects of her GERD symptoms during the adjudicated period. Indeed, Plaintiff fails to highlight any evidence which she believes the ALJ ignored, which would have supported finding her GERD was a severe impairment at step two of the sequential process. Plaintiff merely wishes this Court to reconsider the same evidence and to reach a different conclusion than the one reached by the ALJ, which this the Court cannot do. Milam, 794 F.3d at 983; Woolf, 3 F.3d at 1213.
Plaintiff similarly seeks to recharacterize evidence regarding her dry eye treatments to assert that this condition, which is also a symptom associated with myotonic dystrophy, should itself have been considered a severe impairment at step two. For example, Plaintiff cites to her treatment records from Northwest Eye Clinic to assert that her dry eyes were “bothersome ‘several times per day and [were] problematic for several years'”; that she required eye drop treatments twice a day, and at times, multiple times a day, to treat or prevent “exacerbations, keratitis and dryness”; that she experienced eye pain and discomfort, including “‘dryness, burning, watering' as well as ‘dry eyes secondary to nocturnal lags, partial blink . . . multiple drops followed by request for refills . . . [and] blink exercises [were] also recommended.'” (Tr. 12, 811-821).
However, again, the records Plaintiff refers to were also cited by the ALJ to support his determination that, while Plaintiff had been treated for dry eyes, there was no evidence of resulting work-related restrictions during the adjudicated period. (Tr. 42, 807-821). The Court agrees. For instance, the Northwest Eye Clinic records for May 2015, provide that, while her dry eyes “ha[d] been problematic for more than a year,” they had improved via prescriptions for Restasis and Systane with her vision being stable in both eyes. (Tr. 814-817); see Brown, 611 F.3d at 955.
Here too Plaintiff fails to highlight any evidence which she believes the ALJ ignored, but merely wishes this Court to reconsider the same evidence in order to reach a different conclusion than the conclusion reached by the ALJ. As already explained, the Court cannot do this under the applicable standard of review. Milam, 794 F.3d at 983; Woolf, 3 F.3d at 1213.
Lastly, the Court is similarly unable to reweigh the evidence to find that Plaintiff's joint hypermobility was a severe impairment at step two of the sequential process. For example, Plaintiff contends that the record demonstrated that her joint hypermobility persisted for more than a year “during the period in question,” and in support, cites to a November 4, 2016, treatment note, which reported a presence of “[a]ction myotonia . . . especially grip myotonia, [p]ercussion myotonia at thenars . . . [h]igh arched palate, [l]ong fingers and toes, [h]yperextensibility . . . [and an observation that Plaintiff could] bring thumb distal phalanx over hand dorsum.” (Tr. 13, 72, 1019). While Plaintiff concedes, and the Court agrees, that this note is “hard to decipher,” the Court finds that Plaintiff's reliance on this treatment note is misplaced because it falls outside of the adjudicated period.However, even if this treatment note were considered, it nevertheless fails to support her assertion that her joint hypermobility persisted for at least twelve months during the adjudicated period. (Compare Tr. 1857 (listing hypermobility syndrome as a diagnosis in May 2013) with Tr. 1019 (reporting grip myotonia and hyperextensibility in November 2016)).
See, supra, fn. 6.
In his decision, the ALJ specifically considered this condition, acknowledging that the record contained “[n]otes . . . reflect[ing] findings of joint hypermobility.” (Tr. 42, 1857). However, the ALJ found that, because there was no evidence that this condition resulted in more than minimal work-related restrictions persisting for at least twelve months during the adjudicated period, Plaintiff's joint hypermobility was considered a non-severe impairment. (Tr. 42).
Plaintiff here again merely highlights favorable evidence which was already considered by the ALJ, and she offers her own subjective, interpretation of the evidence considered by the ALJ.
In sum, Plaintiff essentially argues that there is also substantial evidence in the record that could support that her GERD, dry eyes, and hypermobility were severe at step two of the sequential evaluation. However, if it is possible to reach two inconsistent positions from the evidence and one of those positions represents the decision of the ALJ, then the Court must affirm the decision. See Robinson, 956 F.2d at 838; Bradley, 528 F.3d at 1115; Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009). Such is the circumstance in the present case.
B. Step Four-Residual Functional Capacity
The Court next addresses Plaintiff's argument that the ALJ's RFC determination was not supported by substantial evidence.
“A claimant's RFC represents the most [s]he can do despite the combined effects of all of [her] credible limitations and must be based on all credible evidence.” McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011); accord, 20 C.F.R. § 404.1545(a)(1). “A disability claimant has the burden to establish [her] RFC.” Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). “The ALJ determines a claimant's RFC based on all relevant evidence, including medical records, observations of treating physicians and others, and the claimant's own descriptions of his or her limitations.” Id. at 591. “Because a claimant's RFC is a medical question, an ALJ's assessment of it must be supported by some medical evidence of a claimant's ability to function in the workplace. However, there is no requirement that an RFC finding be supported by a specific medical opinion.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). “Even though the RFC assessment draws from medical sources for support, it is ultimately an administrative determination reserved to the Commissioner.” Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012).
Plaintiff's argument challenges the RFC on several grounds, as discussed in more detail below. However, the Court finds that, here again, Plaintiff is essentially inviting this Court to reweigh the whole of the medical evidence and to come to a different RFC conclusion than the ALJ. See Milam, 794 F.3d at 983; Woolf, 3 F.3d at 1213.
To the extent Plaintiff again argues that there was also substantial evidence in the record that might have supported additional limitations in the RFC and a finding of disability, this Court may not reverse the ALJ simply because substantial evidence exists to support an opposite conclusion. See Milam, 794 F.3d at 983. Nor can the Court substitute its own judgment or findings of fact for those of the ALJ. See Woolf, 3 F.3d at 1213. The Court “must consider evidence that both supports and detracts from the ALJ's decision,” and “must affirm the denial of benefits if ‘it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings.'” See Milam, 794 F.3d at 983 (citations omitted) (emphasis added).
Nevertheless, for the sake of completeness, the Court will address all of Plaintiff's arguments.
i. Hypersomnolence and Fatigue
Plaintiff first contends that the ALJ failed to consider her hypersomnnolence and fatigue and their effects on her functionality during the adjudicated period when crafting the RFC. (Id.). The Court disagrees.
When evaluating a claimant's credibility as to subjective complaints, the ALJ must consider the Polaski factors. Grindley v. Kijakazi, 9 F.4th 622, 629 (8th Cir. 2021); see Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). “Those factors include: ‘the claimant's prior work history; daily activities; duration, frequency, and intensity of pain; dosage, effectiveness and side effects of medication; precipitating and aggravating factors; and functional restrictions.'” Grindley, 9 F.4th at 629 (quoting Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010)). “Another factor to be considered is the absence of objective medical evidence to support the complaints, although the ALJ may not discount a claimant's subjective complaints solely because they are unsupported by objective medical evidence.” Id. (quoting Halverson, 600 F.3d at 931-32). An ALJ may consider a conservative treatment history in discrediting subjective complaints. Milam v. Colvin, 794 F.3d 978, 985 (8th Cir. 2015).
The ALJ noted that Plaintiff initially alleged an inability to work due to:
GERD, scoliosis, myotonic dystrophy, bad hips, heart disease, chronic back pain, dry eyes, tongue and grip myotonia, weakness, leukopenia and allegories, exercise-induced asthma, hand tremors, lactose deficiency, QT prolongation, thyroid problems, and recurrent sinusitis with broken nasal septum and deviation.(Tr. 45). The ALJ then cited to Plaintiff's December 2016, Adult Disability Report where she reported that she continued working despite these conditions up until they started bothering her in January 2013. (Tr. 45, 463-464). The ALJ then discussed Plaintiff's hearing testimony wherein she testified to first noticing symptoms as a freshman in college with her condition progressively getting worse. (Tr. 45). Plaintiff further testified that she taught kickboxing while in college, and although she suffered a tear in her hip while teaching in December 2014, she continued working, despite experiencing back pain and dry mouth due to medications. (Tr. 45-46). The ALJ further noted that Plaintiff testified to taking full time college courses while using a stimulant to treat her hypersomnolence and taking naps everyday between college classes. (Tr. 46). The ALJ also noted her mother's (“Ms. Ruth”) testimony about Plaintiff's hip pain and hip injury in December 2014, the surgeries to her hips thereafter, Plaintiff's fatigue symptoms during this time, and her difficulty with reflux, among other things. (Tr. 46).
The ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms [were] not fully supported [during the adjudicated period], for the reasons explained [below].” (Tr. 46). The ALJ then discussed, at length, the significant amount of objective evidence in the records, including reports from Plaintiff herself, that were inconsistent with Plaintiff's subjective complaints, and consistent with the RFC determination. (Tr. 46-50).
The Court discusses the evidence below, in pertinent part, and as it relates to the adjudicated period.
As noted above, Plaintiff applied for DAC benefits on June 13, 2014, alleging disability beginning January 1, 2013 (or when she was 19 years old). (Tr. 39). Plaintiff's application for DAC benefits is not included in the administrative record, however, Plaintiff provided testimony describing her alleged impairments, limitations, and medical treatment during this period. Specifically, at the May 14, 2019, administrative hearing, Plaintiff testified that, as a genetic disease, she had myotonic dystrophy all her life, but her grip and tongue myotonia only got “markedly” worse her freshman year of college (in 2012), and she did not experience hip and back pain until she sustained a labral hip tear while teaching a cardio kickboxing class in December 2014. (Tr. 110-112, 610). Afterwards, Plaintiff continued teaching kickboxing classes two to three times a week for one hour but did so only with vocal cues or with substitutes, when necessary. (Tr. 112-113). While it is unclear from her testimony how long she continued teaching cardio kickboxing classes, Plaintiff did testify to attending college full-time into her senior year (between 2014 and 2015) but needing to take stimulants to “stay awake during classes,” and needing to schedule her classes around naps. (Tr. 115-117). Plaintiff also testified that she moved in with her parents her senior year because she needed to be driven to classes, and needed help with preparing meals, as well as, getting dressed. (Tr. 115-118). She testified that, during that time, one of the biggest issues preventing her from living independently and being able to maintain school was the “sleepiness,” which has only gotten worse. (Tr. 116-119). However, Plaintiff also testified that she worked her senior year as a server at a local restaurant for six-hour shifts “mostly just Saturday mornings,” but she did not lift any food or trays because of her back pain. (Tr. 114). As for any speaking difficulties, Plaintiff testified to only experiencing dry mouth from the medications she was taking at the time. (Tr. 114).
Plaintiff's mother, Ms. Ruth, also testified at the May 14, 2019, administrative hearing. She testified that, Plaintiff had been receiving treatment for severe scoliosis since age 16, but her back pain continued to progressively get worse until she was ultimately diagnosed with myotonic dystrophy some years later. (Tr. 133-134). Ms. Ruth confirmed that Plaintiff began attending college full-time, but she also testified to appealing to “the head of admissions,” until Plaintiff was “admitted . . . conditionally to a special program . . . where she had to be really monitored.” (Tr. 134-135). Ms. Ruth testified that she did not learn that Plaintiff was having difficulty opening jars and was experiencing slurred speech in 2012, until after Plaintiff told her in January 2013, which prompted Ms. Ruth to seek medical treatment for Plaintiff. (Tr. 130-133). Narrowing down her observations of Plaintiff towards the end of 2014, beginning in 2015 (but presumably before she attained the age of 22), Ms. Ruth testified that Plaintiff suffered from narcolepsy and suffered from hypersomnia, which caused her to sleep “24/7” where she would not wake up and would be “tired all the time,” even as a teenager. (Tr. 137). Ms. Ruth further testified that Plaintiff began having difficulty walking up stairs and began experiencing significant hip pain after the December 2014, hip injury, confirming that Plaintiff lived with her during senior year of college where they helped her with financing, did her laundry, cooked for her, went grocery shopping, drove her to college classes, and occasionally helped Plaintiff dress herself and grab items. (Tr. 135-136).
Turning to the medical records during the adjudicated period, progress notes from the Minneapolis Clinic of Neurology indicate that, on July 16, 2013, Plaintiff reported chronic hypersomnia since high school, but she did feel refreshed after one-to-two-hour naps. (Tr. 829). No adjustments were made to her medications, and she was recommended to undergo a sleep study and maintain a sleep diary. (Tr. 831). On July 25, 2013, Plaintiff followed through and underwent a sleep study at the North Memorial Sleep Health Center, which showed Plaintiff had hypersomnia, but as the ALJ noted, the study was otherwise unremarkable. (Tr. 48, 619-621). The following month, on August 19, 2013, Plaintiff appeared with her mother for a follow-up appointment where the results of the sleep study were reviewed. (Tr. 827). While the results of the sleep study were pending, Plaintiff had apparently been prescribed Nuvigil which she reported had helped her alertness markedly improve. (Tr. 827); see Brown, 611 F.3d at 955 (“If an impairment can be controlled by treatment or medication, it cannot be considered disabling.”); see also Hill v. Colvin, 753 F.3d 798, 800 (8th Cir. 2014). Treatment notes in June 2014, indicate that Plaintiff began taking Modafinil to treat her hypersomnolence (although it is unclear if this was instead of or in addition to Nuvigil), but she did report it as being “helpful.” (Tr. 743, 882). Treatment notes in October 2015, then indicate that, at some point, her stimulant medication was changed to Concerta, but she reported no side effects and no concerns to her cardiologist. (Tr. 825).
Further, there is other medical evidence in the record during the adjudicated period that is inconsistent with Plaintiff's subjective complaints of hypersomnia and fatigue. For example, Plaintiff appeared for follow-up appointments consistently awake, alert, and oriented. (Tr. 670, 676, 682, 725, 737, 743, 782, 799, 840, 882, 892). Moreover, the medical records show that while she reported a history of persistent sleepiness and fatigue, Plaintiff was active during the adjudicated period as noted by the ALJ. (Tr. 47). For example, Plaintiff reported attending college full-time and majoring in art, serving tables at a restaurant, going to the gym three times a week, walking or running about a half hour at the gym without difficulty; and teaching group fitness at the university recreation center. (Tr. 669, 680, 725, 735, 837); see e.g., Tennant v. Apfel, 224 F.3d 869, 871 (8th Cir. 2000) (finding that the claimant's ability to attend college part-time, carry 17 credit hours of chiropractic classes while maintaining a C average contradicted his testimony regarding the severity of his disability).
The ALJ ultimately determined that Plaintiff was “limited to light work, with additional postural activities and restriction on exposure to hazards to accommodate her pain complaints and dizziness, hypersomnolence concerns.” (Tr. 46). In making this RFC determination, “[t]he ALJ was entitled to consider all of the evidence in the record.” Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005); see also Stormo v. Barnhart; 377 F.3d 801, 807 (8th Cir. 2004) (“The ALJ should consider all evidence in the record ....” (quotations omitted)).
Therefore, to the extent Plaintiff argues that the RFC determination was not supported by substantial evidence because the ALJ failed to properly consider her hypersomnolence and fatigue, the Court disagrees for all the reasons above.
ii. Tongue and Grip Myotonia
Plaintiff next asserts that the ALJ failed to include in the RFC limitations to accommodate her grip and tongue myotonia. Specifically, despite detailed functional limitations associated with grip and tongue myotonia in her medical records and through her own hearing testimony, the ALJ erred in only limiting Plaintiff to power gripping and torquing bilaterally. (Plf.'s Mem., [Docket No. 19], at p. 8). The Court finds this argument unpersuasive.
Plaintiff was diagnosed with myotonic dystrophy following an abnormal EMG report in April 2013. (Tr. 835). Plaintiff testified during the May 14, 2019, administrative hearing about her functionality during her time in college. Specifically, Plaintiff testified that she had difficulty grabbing items and releasing her fingers resulting in difficulty unscrewing objects, putting on her shoes, pulling up her pants, gripping buttons or zippers, and occasional difficulty holding a paintbrush or a pen for school. (Tr. 117-119). When asked about difficulty speaking, Plaintiff testified that she only experienced dry mouth due to her medications. (Tr. 114). Plaintiff's mother, Ms. Ruth, confirmed that Plaintiff needed help pulling up her pants at times because of her hand spasms. (Tr. 136).
However, there was medical evidence in the record that was inconsistent with Plaintiff's subjective complaints of manipulative and speaking limitations. For example, Plaintiff appeared for a neurology consult with Dr. Sarah Benish in March 2013, reporting spasms with her hands and tongue but reporting no difficulty in molding ceramics for school and no difficulty in exercising. (Tr. 839). She did have difficulty opening her hands after making a tight fist, but was observed with normal extremities, normal muscle tone, and normal strength testing in all four extremities. (Tr. 841). Plaintiff was also able to stand without difficulty and had normal gait. (Tr. 841). In June 2013, her myotonic dystrophy was considered “rather mild.” (Tr. 892). Her neurological exam indicated that her tongue showed no atrophy with “pretty much normal strength”; her strength was a 5 out 5 in both upper and lower limbs; her tone was normal; she had no difficulties standing up from a chair and walking on heels and toes, her reflexes were brisk; and her tandem gait was normal, among other things. (Tr. 892). During a follow-up visit in August 2013, following genetic testing, Plaintiff appeared with normal speech and affect and no gross motor deficits, reporting she was a junior in college, majoring in art, and serving tables at a restaurant. (Tr. 888-889). In June 2014, Plaintiff reported intermittent hand grip issues with improved slurred speech. (Tr. 884). She reported finishing her junior year in college, and being busy and physically active by teaching kickboxing and working as a server. (Tr. 884). On June 16, 2014, Plaintiff appeared with normal tongue strength, 5 out 5 strength throughout all four limbs, strong neck flexion and extension, and no significant cardiac arrhythmias. (Tr. 882-883). Plaintiff reported that she was doing very well in college, and did have occasional cramping of her tongue but that this was not bothersome for her. (Tr. 882).
Ultimately, the ALJ limited Plaintiff to “light work with additional restrictions, including limiting her to power gripping and torquing bilaterally to accommodate myotonia in the hands, which was documented.” (Tr. 46). The ALJ did not include speaking restrictions because Plaintiff “did not reported significant difficulty with speaking and there were no abnormal findings regarding the tongue,” during the adjudicated period. (Tr. 52). As noted above, “[t]he ALJ was entitled to consider all of the evidence in the record,” in making this RFC determination. Vandenboom, 421 F.3d at 750; see also Stormo, 377 F.3d at 807
Therefore, this Court finds Plaintiff's argument that the ALJ erred because the RFC failed to include more manipulative and speech limitations is unpersuasive in light of the record as a whole.
iii. Absenteeism and Frequent Breaks
Plaintiff next appears to assert that the RFC should have included limitations accounting for her being absent from work for “more than two days” to seek treatment and the need for frequent breaks to accommodate her fatigue, hypersomnia, and daily nap requirement, as well as, the dry mouth side effects of her medication. In support, Plaintiff relies on the testimony of IVE Mastbaum from the May 14, 2019, administrative hearing; Dr. Georgios Manousakis' March 2017, opinion;and an out-of-District decision, DePorter v. Comm'r of Soc. Sec. Admin.However, the Court finds this argument unpersuasive.
The Court finds no error in the hypothetical question the ALJ posed to the vocational expert. As noted above, the ALJ discounted Plaintiff's subjective complaints based on, among other things, her daily activities during the adjudicated period-the ALJ reasonably recognized that, before attaining the age of 22, Plaintiff's treatment records did not show such a restriction because of her daily activities at that time and the effective medications to treat her hypersomnolence. (Tr. 47). “[T]he ALJ is only required to incorporate into the hypothetical those impairments and limitations which have been accepted as credible.” See Gragg v. Astrue, 615 F.3d 932, 940 (8th Cir. 2010). As noted above, Plaintiff has not demonstrated having greater limitations than those found by the ALJ, during the adjudicated period. Nevertheless, the ALJ added “additional postural activities and restriction on exposure to hazards, to accommodate her . . . hypersomnolence concerns.” (Tr. 46).10
Plaintiff's reliance on Dr. Manousakis' March 2017, opinion is misplaced since this opinion as provided is from after the adjudicated period (or after she attained 22 years of age). See, supra, fn. 6.
DePorter v. Comm'r of Soc. Sec. Admin., No. CV-20-00567-TUC-JAS (LAB), 2022 WL 677328, at *1 (D. Ariz. Jan. 11, 2022), report and recommendation adopted, No. CV-20-00567-TUC-JAS (LAB), 2022 WL 672671 (D. Ariz. Mar. 7, 2022).
Turning first to Plaintiffs reliance on DePorter, the United States District Court of Arizona held that remand was necessary where the ALJ found a treating provider's opinion “persuasive,” but without explanation, rejected that portion of the opinion that recommended the plaintiff take “frequent rest breaks” while working, for a finding that the plaintiff's fatigue would preclude her from working one day a month, but would not preclude her from working a full 8-hour day with normal breaks. Id. at *8. In that case, the ALJ also cited evidence that did not establish that the plaintiff had the stamina to work a full 8-hour day, with normal breaks, five days per week, but at most, could only work half-time. Id. at *7-8. The Court finds that, in addition to its non-precedential, non-binding nature, this case is inapposite because, in the case now before the Court, as the ALJ noted, there is no medical opinion regarding Plaintiff's work-related restrictions prior to Plaintiff attaining age 22. (Tr. 53).
Turning next to Plaintiff's argument that the RFC required an absentee limitation, the Eighth Circuit Court of Appeals has held that a plaintiff's RFC must be based on her ability to perform the requisite employment tasks on a daily basis for eight hours a day, five days a week. See, e.g., Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991); McCoy v. Astrue, 648 F.3d 605, 617 (8th Cir. 2011). One of the considerations in assessing a plaintiff's RFC is the effects of said plaintiff's impairments, as well as, “[t]he effects of treatment, including limitations or restrictions imposed by the mechanics of treatment (e.g., frequency of treatment, duration, disruption to routine, side effects of medication).” SSR 96-8p, 1996 WL 374184, at *5. Excessive absenteeism from work resulting from a plaintiff's impairment or need for treatment may constitute evidence that such a plaintiff is unable to perform work on a regular and continuing basis or on an equivalent schedule. See Baker v. Apfel, 159 F.3d 1140, 1146 (8th Cir. 1998).
Beyond merely arguing that she would need two days off “due to medical reasons,” Plaintiff fails to highlight any medical records to support this assertion. While the record now before the Court does demonstrate that Plaintiff attended frequent medical appointments during the adjudicated period, “simply because a [plaintiff] require[d] regular healthcare appointments does not necessarily mean [she] cannot work on the days [she] ha[d] appointments, such as by arranging appointments around the work schedule or during breaks, nor even that the [plaintiff] would need to miss an entire work day for an appointment.” Morin v. Colvin, No. 4:14-cv-000769-NKL, 2015 WL 4928461, at *9 (W.D. Mo. Aug. 18, 2015); see Brown v. Saul, No. C18-3071-LTS, 2020 WL 1467044, at *5 (N.D. Iowa Mar. 26, 2020). Instead, if Plaintiff “contends [her] medical appointments would necessarily conflict with her work schedule, it [was] [her] burden to demonstrate that.” Brown v. Saul, No. C18-3071-LTS, 2020 WL 1467044, at *9 (N.D. Iowa Mar. 26, 2020).
Here, Plaintiff has not met her burden of demonstrating that the ALJ erred by not including a limitation for absenteeism based solely on the frequency of her medical appointments during the adjudicated period.
Indeed, other Courts, including Courts in this District, have noted that if the Court “were to adopt Plaintiff's argument, then any [claimant] could establish disability simply by scheduling monthly doctor's appointments.” Jason P. v. Kijakazi, No. 20-cv-688 (TNL), 2021 WL 4483040, at *16 (D. Minn. Sept. 30, 2021) (collecting cases). In rejecting a similar argument, the Tenth Circuit Court of Appeals noted that “plaintiff's current extrapolation of how many days she must have missed from work based on her medical record is faulty” in part “in that it assumes she was required to miss entire days of work for each appointment.” Barnett v. Apfel, 231 F.3d 687, 691 (10th Cir. 2000).
To be clear, this is not a case in which a plaintiff has pointed to medical evidence or opinion evidence demonstrating they are likely to be absent from work for any significant number of days per month due to their impairment or treatment of said impairments. Cf., Gude v. Berryhill, No. 2:16-cv-79 (SPM), 2018 WL 1470455, at *3-5 (E.D. Mo. Mar. 26, 2018). Indeed, as the ALJ in the present case noted, there are no medical opinions whatsoever in the record regarding Plaintiff's work-related restrictions for the adjudicated period. (Tr. 53). “Nor is this a case where it is uncontested that Plaintiff's treatment would cause [her] to be absent for the entire day.” Jason P. v. Kijakazi, No. 20-cv-688 (TNL), 2021 WL 4483040, at *16 (D. Minn. Sept. 30, 2021) (citing Kim J. H. v. Saul, No. 18-cv-2736 (MJD/TNL), 2020 WL 872308, at *9-11 (D. Minn. Jan. 27, 2020), report and recommendation adopted, 2020 WL 869963 (D. Minn. Feb. 20, 2020). Instead, this is a case in which the record now before the Court demonstrates only that Plaintiff consistently went to various medical appointments during the adjudicated period.
Furthermore, to the extent Plaintiff also argues that the ALJ's RFC determination should have included an off-task time restriction to allow for off-task time throughout the workday to accommodate her fatigue, hypersomnia, daily nap requirement, and dry mouth side effects of her medication, this argument too is unavailing. Plaintiff contends that the “[m]edical records . . . confirm ‘extensive naps and daytime fatigue' throughout.” (Plf.'s Mem., [Docket No. 19], at p. 5). However, here again, Plaintiff's proffer falls well short of her burden of demonstrating that her symptoms and medicinal side effects would sufficiently interfere with a work schedule to necessitate an off-task time restriction.
Most notably, Plaintiff's citations to the record regarding her claim of symptoms, such as fatigue and excessive sleepiness cites to only her subjective self-reported symptoms. The ALJ, however, found Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms [were] not fully supported prior to January 1, 2017,” and Plaintiff has not challenged this credibility finding by the ALJ. In addition, as for Plaintiff's cites to in the record where she reported dry mouth, these were merely non-severe side effects from taking stimulant medications to remain alert in college classes and are not themselves indicated as interfering with work activities or life activities in any way.
For the reasons stated above and based on the record now before the Court, Plaintiff has failed to meet her burden of demonstrating that the ALJ erred by not including a limitation for absenteeism and a restriction for off-task time in the RFC.
iv. Medication Side Effects
To the extent Plaintiff asserts that the ALJ failed to consider altogether her medication side effects and their impact on her ability to work during the adjudicated period, here too the Court disagrees.
The ALJ must properly consider the claimant's testimony regarding significant medication side effects. Porch v. Chater, 115 F.3d 567, 572 (8th Cir. 1997). This requires an express examination of the dosage, effectiveness, and side effects of all medication. Polaski, 739 F.2d at 1322. Failure to include medication side effects in the hypothetical to the IVE, “at a minimum,” requires the case to be remanded. Mitchell v. Sullivan, 925 F.2d 247, 250 (8th Cir. 1991).
Plaintiff points to her medical records from September 2015 and May 2018, Adult Function Reports from December 2016 and April 2017, and Disability Reports from April 2017 and September 2017, which notes multiple side effects to medications she had been prescribed or was currently taking. (Plf.'s Mem., [Docket No. 19], at pp. 18-20). However, these records all fall well outside of the adjudication period.
See, supra, fn. 6.
Reviewing those records for within the adjudicated period, the Court finds that the only medication side effects Plaintiff reported experiencing were headaches and dry mouth from taking stimulant medication to stay awake for college classes, which the ALJ did specifically note. (Tr. 46, 116). Plaintiff did not indicate any other side effects. For example, and as noted above, progress notes from the Minneapolis Clinic of Neurology indicate that, in July 2013, Plaintiff reported to Dr. Jason Cornelius chronic hypersomnia since high school, but that she felt refreshed after one-to-two-hour naps and experienced no headaches or dry mouth even after an hour or two following awakening. (Tr. 829). Dr. Cornelius then reviewed medications with Plaintiff, but no adjustments were made, and she was recommended to undergo a sleep study and maintain a sleep diary. (Tr. 831). The following month, on August 19, 2013, Plaintiff appeared with her mother where the results of the sleep study were reviewed. (Tr. 827). Plaintiff reported some transient headaches while on a lower dosage of Nuvigil that improved after a few days on the medication, but her alertness did markedly improve. (Tr. 827). Plaintiff did report experiencing significant headaches, dry mouth, and insomnia on the higher Nuvigil dosage, but she was continued on the lower dosage, which she reported was helpful. (Tr. 827). Plaintiff only stopped taking Nuvigil because it was not covered by her insurance. (Tr. 825). Treatment notes in October 2015, then indicate that her prescription was changed to Concerta with no side effects, and she reported that her cardiologist had no issues with her remaining on this medication. (Tr. 825).
Therefore, to the extent Plaintiff argues that the ALJ failed to consider any medication side effects reported with the adjudicated period when formulating the RFC, which appear to have only been headaches and dry mouth from stimulant medications, this is simply not the case. The ALJ did consider such portions of the relevant record such as they are. See SSR 96-8p, 1996 WL 374184, at *5 (providing that one consideration in assessing a plaintiff's residual functional capacity is the effect of said plaintiff's impairments, as well as, “[t]he effects of treatment, including limitations or restrictions imposed by the mechanics of treatment (e.g., frequency of treatment, duration, disruption to routine, side effects of medication).”).
v. Medical Opinion Evidence
Plaintiff next asserts that the ALJ improperly weighed the medical opinion evidence. (Plf.'s Mem., [Docket No. 19], at pp. 20-22). Specifically, Plaintiff argues that the ALJ erred by heavily relying on the opinion of IME Horozaniecki, but “[m]ore weight should [have] been given to . . . Plaintiff's treating physicians as they all examined her and the IME ha[d] not examined [Plaintiff].” (Id. at p. 21). The Court is unpersuaded by Plaintiff's argument for several reasons.
As an initial matter, and as the ALJ noted, there were no medical opinions from treating physicians regarding Plaintiff's work-related restrictions in the record dated for the adjudicated period. (Tr. 53). Therefore, Plaintiff's argument that the ALJ should have given her treating physicians “more weight” lacks merit in light of the record.
The Court's review of the record indicates that the ALJ's RFC determination during the adjudicated period was based on, among other things, the opinions of IME Horozaniecki and the State Agency consultants.
Although the opinions of consultative examiners, non-examining testifying experts, and non-examining State Agency consultants may not constitute substantial evidence on their own, an ALJ does not err when he relies on these opinions, and they are supported by the rest of record. See Turpin v. Colvin, 750 F.3d 989, 994 (8th Cir. 2014); Johansen v. Astrue, No. 10-2076 (DWF/SER), 2011 WL 4583831, at *13 (D. Minn. Aug. 15, 2011), report and recommendation adopted by 2011 WL 4583828 (D. Minn. Sept. 30, 2011); Nelson v. Astrue, No. 06-4298 (DWF/SRN), 2008 WL 822157, at *17 (D. Minn. Mar. 26, 2008).
Courts have routinely upheld ALJ decisions that give significant weight to the opinions of consultative examiners, testifying experts, and State Agency consultants when the ALJ's decision to do so is supported by substantial evidence in the record. See, e.g., Franks v. Colvin, No.13-2904 MJD/FLN, 2014 WL 6911291, at *13 (D. Minn. Dec. 8, 2014) (finding the ALJ did not err by giving “significant weight” to a one-time consultative examiner); Johansen, 2011 WL 4583831, at *14 (“[T]he ALJ did not err by giving ‘significant weight' to the opinions of the state agency consultants”).
Turning first to IME Horozaniecki, the Court finds that his opinion supports the ALJ's RFC determination for the adjudicated period. At the May 14, 2019, administrative hearing, IME Horozaniecki testified as to all the impairments he observed in the record, including myotonic dystrophy type 1, which had multiple manifestations-two of which were the inability to relax the grip and speech issues. (Tr. 104). IME Horozaniecki also identified impairments of “hypersomnia, excessive daytime somnolence treated with medication, with stimulant medication,” which “most providers fe[lt] . . . [was] part of the Myotonic Dystrophy Syndrome.” (Tr. 104-105). IME Horozaniecki opined that, while there were positive EMG findings from April 2013 to confirm a myotonic dystrophy diagnosis, her symptoms were not severe prior to May 2017, which is where the record supports Plaintiff meets listing 11.13, because “she was working two jobs and also working as a fitness instructor” during that time, as well as, attending college full-time. (Tr. 106-108). IME Horozaniecki then opined that, prior to May 2017, Plaintiff had the ability to do light work with certain restrictions in place, including “no power gripping with either upper extremity. That is to say, full force gripping or grasping.” (Tr. 108). When questioned by Plaintiff's counsel about any limitations related to hypersomnia, IME Horozaniecki opined “that was more pronounced later. And the medical record did indicate that. . . she was treated with Modafinil or other medications that appeared to control that fairly well.” (Tr. 109).
A review of IME Horozaniecki's testimony shows that he used his expertise in formulating an opinion based on a review the complete record, Plaintiff's activities of daily living, and her overall ability to function. Therefore, as noted above, there is substantial evidence on the record to support the ALJ's decision in assigning IME Horozaniecki's opinion great weight. See Rogers, 118 F.3d at 602; Ghant, 930 F.2d at 639.
To the extent Plaintiff argues the ALJ cannot rely on the non-examining expert's opinion, it is well-established that an ALJ can adopt the contrary medical opinion of a consulting physician, when the treating source's statements are conclusory, unsupported by medically acceptable clinical or diagnostic data, or when the ALJ's determination is justified by substantial evidence in the record, as a whole. See Rogers, 118 F.3d at 602; Ghant, 930 F.2d at 639.
Further, the Court notes that at the May 14, 2019, administrative hearing, the ALJ asked Plaintiff's counsel if he had any objection to IME Horozaniecki's appearance as an expert to which Plaintiff's counsel responded, “No, Your Honor.” (Tr. 103). The ALJ was entitled to seek expert opinion testimony from an independent medical expert. See Winstrom v. Halter, 168 F.Supp.2d 1032, 1037 (D. Minn. 2001). In the present case, without objection, the ALJ sought expert opinion testimony from IME Horozaniecki, and the ALJ is entitled to rely upon that opinion.
Plaintiff next argues that the ALJ erred in his RFC determination by improperly assessing the weight given to the opinions of the State Agency consultants, who at the initial level, determined that Plaintiff had the ability to conduct light work, but who at the reconsideration level, found that Plaintiff only had the ability to conduct sedentary work. (Plf.'s Mem., [Docket No. 19], at p. 8).
On January 14, 2017, the State Agency consultant at the initial level, Dr. Joyce Warkentein, provided opinions as to Plaintiff's functional capacity from January 1, 2013, through the date of her opinion, which included the adjudicated period. (Tr. 156-200). In Dr. Warkentein's opinion, Plaintiff had the functional capacity to perform light level work and concluded that Plaintiff was not disabled. (Tr. 84-85, 98-99). Dr. Warkentein also opined that Plaintiff was limited to lifting and/or carrying 20 pounds occasionally and 10 pounds frequently; limited to standing, walking, and/or sitting for about 6 hours in an 8-hour workday; and limited in pushing and/or pulling with both of her upper extremities, such that Plaintiff was to avoid repetitious or continuous push/pull work with bilateral upper extremities due to hand grip myotonia bilaterally. (Tr. 165-166, 180181, 195-196). To accommodate Plaintiff's back pain due to scoliosis and her bilateral hip dysplasia, Dr. Warkenstein opined that Plaintiff could frequently climb ladders/ropes/scaffolds, kneel and crawl, and could occasionally stoop and crouch, but had no limitation in climbing ramps/stairs and balancing. (Tr. 166, 181, 196). Dr. Warkenstein also opined that Plaintiff was limited in occasionally gripping and grasping bilaterally and had communicative limitations due to her history of tongue cramping and slurred speech because of myotonic dystrophy. (Tr. 167, 182, 197).
At the reconsideration level, on July 11, 2017, Dr. James Greco affirmed Dr. Warkentein's limitations, except that, in his opinion, Plaintiff had the functional capacity to perform sedentary work. (Tr. 207-224).
The ALJ gave Dr. Warkentein's opinion from the initial level “substantial weight” because it was “generally consistent with the evidence submitted at the hearing level” as to the adjudicated period, except for the speaking restrictions. (Tr. 52). Whereas the ALJ gave Dr. Greco's opinion from the reconsideration level “little weight” because the opinion “overstate[d] the claimant's restrictions when compared with the medical evidence” regarding the adjudicated period. (Tr. 52)
The Court finds that the ALJ properly relied on Dr. Warkentein's opinion from the initial level. See 20 C.F.R.§§ 404.1527(e), 416.927(e) (ALJ may rely upon state-agency opinions as medical opinion evidence); see also Jones, 619 F.3d at 971 (requiring only that the record contain “some medical evidence” supporting the ALJ's decision”). Here, the ALJ did not rely solely on Dr. Warkentein's opinion in crafting the RFC, rather the ALJ also considered the rest of the relevant evidence in the record for the adjudicated period, as already discussed above. Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007).
vi. RFC Determination
In sum, the record indicates that the ALJ considered Plaintiff's hearing testimony, her subjective complaints, her mother's hearing testimony, third-party statements,the medical records, and the medical opinion evidence, among other things, to determine that, during the adjudicated period, Plaintiff did not have severe hypersomnolence and fatigue symptoms; severe manipulative or speaking limitations; nor required absenteeism or off-task restrictions beyond what was provided in the RFC. (See Tr. 39-54). The ALJ was not obligated to include restrictions in the RFC determination for every impairment, including severe impairments, provided his decision not to do so was supported by substantial evidence in the record. See Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003) (holding that the ALJ did not make “specific findings . . . as to sitting, standing, and walking, [and] we do not believe that he [ALJ] overlooked those functions. . . the record reflects that the ALJ implicitly found that [claimant] was not limited to these areas . . . all of the functions that the ALJ specifically addressed in the RFC were those in which he found a limitation, thus giving us some reason to believe that those functions that he omitted were those that were not limited”). Such is the circumstance in the present case.
Plaintiff also argues that the ALJ improperly rejected letters from her sister and friends. However, the Court disagrees. The ALJ specifically considered these third-party statements but gave them “little weight” as to their observations of Plaintiff regarding work-related limitations because, among other things, they could not be considered disinterested third parties and their observations were not consistent with the preponderance of the opinions and observations in the record by medical doctors. (Tr. 54).
Based on the foregoing, the Court concludes that the ALJ's RFC for the adjudicated period was supported by substantial evidence in the record as a whole.
C. Development of the Record
The Court lastly addresses Plaintiff's argument concerning failure to develop the record.
Plaintiff asserts that ALJ failed to fully and fairly develop the record from before March 7, 2015 (the day she turned 22 years old). Specifically, Plaintiff argues that she notified and authorized the ALJ to request records from Dr. Diane Meier from Partners in Pediatrics, ranging from January 1, 2013 to January 1, 2017, which would have documented her myotonic dystrophy condition and symptoms during the adjudicated period, as well as, her December 2014 hip injury. (Plf.'s Mem., [Docket No. 19], at p. 18).
It is well-settled “that the ALJ bears a responsibility to develop the record fairly and fully, independent of the claimant's burden to press [her] case.” Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (citing cases); Cox v. Astrue, 495 F.3d 614, 618 (8th Cir. 2007). The ALJ is required to develop a complete medical history for the claimant for at least the twelve months preceding the month in which the claimant's application was filed before making a determination. 20 C.F.R. §§ 404.1512(d), 416.912(d). A complete medical history includes the records of the claimant's medical source covering at least the 12 months preceding the month in which the application is filed. 20 C.F.R. §§ 404.1512(d)(2), 416.912(d)(2).
“There is no bright line test for determining when the Secretary has failed to develop the record,” but “the determination in each case must be made on a case by case basis.” Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994) (quoting Lashley v. Secretary of Health & Human Services, 708 F.2d 1048, 1052 (6th Cir. 1983)). A claimant for disability benefits has the responsibility to provide medical evidence demonstrating the existence of an impairment and its severity during the period of disability and how the impairment affects the claimant's functioning. 20 C.F.R. §§ 404.1512(c), 416.912(c); Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (holding that the burden of persuasion to prove disability and demonstrate RFC remains on the claimant). “An ALJ is permitted to issue a decision without obtaining additional medical evidence so long as other evidence in the record provides a sufficient basis for the ALJ's decision.” Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). “[R]eversal due to failure to develop the record is only warranted where such failure is unfair or prejudicial.” Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995) (citing Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993)).
Based on the evidence in the record as a whole, the Court finds no unfairness or prejudice. First, the record contained sufficient evidence for the ALJ to make an informed decision regarding the extent and limiting effects of Plaintiff's impairments during the adjudicated period, which included Plaintiff hearing testimony describing her alleged impairments, limitations, and medical treatment, Adult Function Reports, Disability Reports, opinions from IME Horozaniecki and the State Agency consultants, and significant treatment records for the Plaintiff from the adjudicated period. (Tr. 459-578, 619-939, 1855-1858). This evidence provided a sufficient basis for the ALJ's decision and there was no indication that any additional medical records were necessary. Second, Plaintiff submitted the alleged outstanding medical records to the Appeals Council to be considered as part of her request for reconsideration, which the Appeals Council did consider, but nevertheless it denied her request for review. (Tr. 15-16). Third, as the Commissioner notes, the ALJ asked Plaintiff's counsel at the May 14, 2019, administrative hearing whether the record was complete, and Plaintiff's counsel answered affirmatively and did not indicate that he desired to obtain any additional records from Dr. Meier, from before Plaintiff attained the age of 22, nor that the record was incomplete. (Tr. 100); see Novotny v. Saul, No. 8:18-CV-437, 2019 WL 4942257, at *14 (D. Neb. Oct. 8, 2019) (denying remand for further development of record when claimant failed to show prejudice or unfairness as a result of ALJ's failure to request further opinions).
See fn. 4, supra.
Therefore, because the ALJ adequately developed the evidence in this case, the lack of any additional records from Dr. Meier does not provide a basis to remand this case for further development and consideration.
Plaintiff also makes a passing argument that the ALJ failed to obtain a medical opinion from her treating provider as to her impairments during the adjudicated period. (Plf.'s Mem., [Docket No. 19], at p. 8). However, for the above reasons, the Court also finds this argument unpersuasive.
D. Conclusion
Therefore, based on the foregoing, and all the files, records, and proceedings herein, the Court HEREBY RECOMMENDS THAT:
1. Plaintiff's Motion for Summary Judgment, [Docket No. 18], be DENIED;
2. Defendant's Motion for Summary Judgment, [Docket No. 22], be GRANTED; and
3. This present case be DISMISSED with prejudice.
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the District Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a magistrate judge's proposed finding and recommendations within 14 days after being served a copy” of the Report and Recommendation. A party may respond to those objections within 14 days after being served a copy of the objections. LR 72.2(b)(2). All objections and responses must comply with the word or line limits set forth in LR 72.2(c).