Hey v. Colvin

• Decision Date: 30 September 2015
• Docket Number: Civil No. 14–1704 (DSD/FLN)
• Citation: 136 F.Supp.3d 1021
• Parties: Angela Kristie Hey, Plaintiff, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant
• Court: U.S. District Court — District of Minnesota

136 F.Supp.3d 1021

Angela Kristie Hey, Plaintiff,

v.Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant,

Civil No. 14–1704 (DSD/FLN)

United States District Court, D. Minnesota.

Signed September 30, 2015

Lionel H. Peabody, Esq., Peabody Law Office, P.O. Box 10, Duluth, MN 55801, counsel for plaintiff.

Pamela Marentette, United States Attorney's Office, 300 South 4th Street, Suite 600, Minneapolis, MN 55415, counsel for defendant.

ORDER

David S. Doty

, Judge United States District Court

This matter is before the court upon the objection by plaintiff Angela Kristie Hey to the July 29, 2015, report and recommendation of United States Magistrate Judge Franklin L. Noel (R & R). In the R & R, the magistrate judge recommends that the court deny the motion for summary judgment by Hey and grant the motion for summary judgment by defendant Carolyn W. Colvin, Acting Commissioner of Social Security (Commissioner). After a de novo review, and for the following reasons, the court overrules Hey's objection and adopts the report and recommendation in its entirety.

BACKGROUND

Hey seeks judicial review of the decision to deny her application for Social Security disability insurance benefits and supplemental security income. The background of this action is fully set forth in the report and recommendation, and the court briefly summarizes the history of the present action. Hey filed an application for disability insurance benefits on May 17, 2011, and subsequently filed an application for supplemental security income on June 1, 2011. A.R. at 86–87. Hey initially alleged an onset date of August 1, 2010. Id. at 174. The Commissioner denied the applications initially and again upon reconsideration. Id. at 32, 110, 115, 126, 132. Hey then requested a hearing before an administrative law judge.

On February 26, 2013, at the hearing before the ALJ, Hey amended her alleged onset date to February 1, 2012. Id. at 42. On March 13, 2013, the ALJ affirmed the denial of Hey's applications. The Appeals Council denied Hey's request for review on April 24, 2014, making the ALJ's determination the final decision of the Commissioner.

On May 30, 2014, Hey filed this action, seeking judicial review of the ALJ's determination to deny benefits. Both parties moved for summary judgment. On July 28, 2015, Magistrate Judge Noel recommended granting the Commissioner's motion. Hey objects.

DISCUSSION

I. Standard of Review

The court reviews the report and recommendation of the magistrate judge de novo, and the findings and decisions of the ALJ for substantial evidence on the record as a whole. See 28 U.S.C. § 636(b)(1)(c)

; Haley v. Massanari, 258 F.3d 742, 747 (8th Cir.2001). "Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it adequate to support the [ALJ's] conclusion." Byes v. Astrue, 687 F.3d 913, 915 (8th Cir.2012) (citation omitted). On review, the court considers "both evidence that detracts from and evidence that supports the Commissioner's decision." Hartfield v. Barnhart, 384 F.3d 986, 988 (8th Cir.2004) (citation omitted). The court, however, may not "reverse the Commissioner's decision simply because there is evidence supporting a different result." Hall v. Chater, 109 F.3d 1255, 1258 (8th Cir.1997)

(citation omitted). "If the evidence supports two inconsistent conclusions, one of which is that reached by the Commissioner's conclusion, [the court] must affirm the decision." Id. at 1258. Moreover, a court may not substitute its judgment for that of the ALJ. Fastner v. Barnhart, 324 F.3d 981, 983 (8th Cir.2003). The court will disturb the ALJ's decision to deny benefits only if "the record contains insufficient evidence to support the outcome." Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir.2007) (citation omitted).

II. Disability Determination

The Commissioner employs a five-step sequential analysis in making a disability determination. See 20 C.F.R. § 404.1520(a)(4)

. The ALJ must consider (1) whether the claimant has engaged in substantial gainful activity during the alleged disability period, (2) the medical severity of the impairments, (3) whether the impairments meet or medically equal the criteria of any enumerated impairments, (4) the claimant's residual functional capacity (RFC) and past relevant work and (5) whether the impairments and other relevant circumstances preclude the claimant from engaging in other work. Id. at (a)–(f); see Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir.2005).

At step one, the ALJ found that Hey had not engaged in substantial gainful activity during the alleged disability period beginning on February 1, 2012. A.R. at 25. Next, at step 2, the ALJ determined that Hey had a severe impairment of autosomal-dominant

familial cerebellar ataxia. Id. (citing 20 C.F.R. §§ 404.1520(c), 416.920(c) ). At step three, the ALJ determined that this impairment does not meet or medically equal any of the enumerated impairments. Id. at 27. Because he found that Hey's impairment did not meet or equal an enumerated an impairment, the ALJ made an assessment of Hey's RFC and found that Hey had the RFC to perform light work with the following limitations:

[S]he requires a sit/stand option in which she can stand and walk short distances up to 1–1.5 hours at a time and 4 hours total in an 8–hour workday, with no limitations in sitting. If she works on the feet 4 hours total, she can spend the balance of the day in a seated position or otherwise work the entire shift seated. She is limited to occasional postural adjustments, but cannot climb ladders, ropes, or scaffolds. She can occasionally lift and carry about 15 pounds, but is unable to lift or carry frequently even negligible amounts of weight. She cannot tolerate temperature extremes, excessive humidity, work at unprotected heights, dangerous work settings, unusual work stressors, fast pace production work, or driving as part of an occupation, but can get to the job site. She does not require an assistive device to ambulate.

Id. at 27. In determining Hey's RFC, the ALJ found Hey's statements regarding the intensity, persistence, and limiting effects of her symptoms were not entirely credible. Id. at 28–29. The ALJ granted limited weight to the opinions of Dr. Engberg, Hey's primary care physician, but attributed significant weight to the opinion of consultative examiner Dr. Johnson and persuasive weight to the opinions of the state-agency physicians who reviewed this matter. See id. at 29–30. At step four, the ALJ found that Hey was able to perform her past work as a telemarketer, and in the alternative, at step five found that she was capable of making a successful adjustment to other sedentary unskilled positions, such as tile work and jewelry preparing. Id. at 30. As a result of these findings, the ALJ determined that Hey was not disabled within the meaning of the Social Security Act, and therefore denied her application for disability insurance benefits and supplemental security income. Id. at 32.

In reviewing the ALJ's decision, the magistrate judge found that the ALJ did not err in determining Hey's RFC. R & R at 18. The magistrate judge also found that the ALJ fairly and completely developed the record. Id. at 24. Further, the magistrate judge found that the ALJ's credibility determination of Hey was supported by substantial evidence. Id. at 26. Finally, the magistrate judge found that the ALJ properly found that Hey's impairment did not meet the requirements of 20 C.F.R. Part 404, Subpart P, App. 1

§ 11.17 (Listing 11.17). Id. at 28.

Hey argues that the ALJ and the magistrate judge erred in (1) determining Hey's RFC and questioning the vocational expert accordingly, (2) evaluating Hey's credibility, and (3) determining that Hey's impairment does not meet the requirements of Listing 11.17.

A. Residual Functioning Capacity

Hey first argues that the ALJ's finding of her residual functional capacity is not supported by substantial evidence on the record as a whole. Hey points to three specific alleged errors the ALJ made in this determination. First, Hey claims that the hypothetical the ALJ posed to the Vocational Expert (VE) failed to include all of her limitations. Second, she argues that the ALJ should have taken into account her complaints about double vision and migraines when determining her RFC. Third, Hey argues that the ALJ erred in affording "little weight" to her treating physician while weighing the credibility of doctors with conflicting medical testimony.

1. The ALJ's Hypothetical to the VE

"Testimony from a VE based on a properly-phrased hypothetical question constitutes substantial evidence." Roe v. Chater, 92 F.3d 672, 675 (8th Cir.1996)

. A hypothetical posed to a VE is therefore considered sufficient when it "sets forth impairments supported by substantial evidence in the record and accepted as true by the ALJ." Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir.2001). The hypothetical need include only those impairments that the ALJ has found are substantially supported by the record as a whole. Roe, 92 F.3d at 675.

As more fully set out in the R & R, at Hey's hearing, the ALJ posed a detailed hypothetical to the VE, including an indication that "[t]he individual will be awkward, and, and, and not swift in doing work-like activities requiring her to walk." A.R. at 58. Hey argues that this hypothetical was deficient because it did not indicate a need for an assistive device for ambulation. However, the ALJ need not be precise in his descriptions of the applicant's impairments. Rather, the phrases used by the ALJ should "capture the concrete consequences" of Hey's deficiencies. See Roe, 92 F.3d at 677

.

The substantial evidence on the record indicates that the ALJ described Hey's impairments to the VE in a way that explained their effect on her capacity to work. Indeed, following the ALJ's hypothetical, the VE asked a clarifying question to inquire as to whether the individual was capable of walking. A.R. at 59. The ALJ responded, ...