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Kukuloff v. Berryhill

United States District Court, S.D. West Virginia, Huntington Division

November 7, 2018

ANGELA MARIE KUKULOFF, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          Cheryl A. Eifert, United States Magistrate Judge.

         This action seeks a review of the decision of the Commissioner of the Social Security Administration (hereinafter “Commissioner”) denying Plaintiff's applications for a period of disability and disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. The matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and was referred to the undersigned United States Magistrate Judge by standing order for submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending are Plaintiff's brief requesting judgment on the pleadings and the Commissioner's brief in support of her decision, requesting judgment in her favor. (ECF Nos. 9, 10).

         The undersigned has fully considered the evidence and the arguments of counsel. For the following reasons, the undersigned RECOMMENDS that Plaintiff's request for judgment on the pleadings be DENIED; the Commissioner's request for judgment on the pleadings be GRANTED; the Commissioner's decision be AFFIRMED; and this case be DISMISSED and removed from the docket of the Court.

         I. Procedural History

         On April 21, 2014, Plaintiff Angela Marie Kukuloff (“Claimant”), completed applications for DIB and SSI, alleging a disability onset date of January 1, 2014 due to back problems and anxiety. (Tr. at 217-20, 259). The Social Security Administration (“SSA”) denied Claimant's applications initially and upon reconsideration. (Tr. at 122-31, 137-42). Claimant then filed a request for an administrative hearing, which was held on October 13, 2016 before the Honorable Boyce Crocker, Administrative Law Judge. (Tr. at 34-77). By written decision dated November 4, 2016, the ALJ found that Claimant was not disabled as defined by the Social Security Act. (Tr. at 14-33). The ALJ's decision became the final decision of the Commissioner on October 25, 2017 when the Appeals Council denied Claimant's request for review. (Tr. 1-6).

         Claimant timely filed the present civil action seeking judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The Commissioner subsequently filed an Answer opposing Claimant's complaint, and a Transcript of the Administrative Proceedings. (ECF Nos. 7, 8). Claimant filed a Brief in Support of Judgment on the Pleadings, and the Commissioner filed a Brief in Support of Defendant's Decision. (ECF Nos. 9, 10). Consequently, the matter is fully briefed and ready for resolution.

         II. Claimant's Background

         Claimant was 28 years old on her alleged onset date and 30 years old on the date of the ALJ's decision. (Tr. at 27). Claimant obtained a general education diploma and attended less than one year of college. (Tr. at 39). She previously worked as a youth services worker, in-home caregiver, janitor, cashier clerk, and construction worker. (Tr. at 71).

         III. Summary of ALJ's Decision

         Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable impairment which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The Social Security regulations establish a five-step sequential evaluation process for the adjudication of disability claims. If an individual is found “not disabled” at any step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first step in the sequence is determining whether a claimant is currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). If the claimant is not, then the second step requires a determination of whether the claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” Id. If severe impairment is present, the third inquiry is whether this impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4 (the “Listing”). Id. §§ 404.1520(d), 416.920(d). If so, then the claimant is found disabled and awarded benefits.

         However, if the impairment does not meet or equal a listed impairment, the adjudicator must assess the claimant's residual functional capacity (“RFC”), which is the measure of the claimant's ability to engage in substantial gainful activity despite the limitations of his or her impairments. Id. §§ 404.1520(e), 416.920(e). After making this determination, the fourth step is to ascertain whether the claimant's impairments prevent the performance of past relevant work. Id. §§ 404.1520(f), 416.920(f). If the impairments do prevent the performance of past relevant work, then the claimant has established a prima facie case of disability, and the burden shifts to the Commissioner to demonstrate, in the fifth and final step of the process, that the claimant is able to perform other forms of substantial gainful activity, given the claimant's remaining physical and mental capacities, age, education, and prior work experiences. 20 C.F.R. §§ 404.1520(g), 416.920(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The Commissioner must establish two things: (1) that the claimant, considering his or her age, education, skills, work experience, and physical shortcomings has the capacity to perform an alternative job, and (2) that this specific job exists in significant numbers in the national economy. McLamore v. Weinberger, 538 F.2d. 572, 574 (4th Cir. 1976).

         When a claimant alleges a mental impairment, the SSA “must follow a special technique at each level in the administrative review process, ” including the review performed by the ALJ. 20 C.F.R. §§ 404.1520a(a), 416.920a(a). Under this technique, the ALJ first evaluates the claimant's pertinent signs, symptoms, and laboratory results to determine whether the claimant has a medically determinable mental impairment. Id. §§ 404.1520a(b), 416.920a(b). If an impairment exists, the ALJ documents his findings. Second, the ALJ rates and documents the degree of functional limitation resulting from the impairment according to criteria specified in Id. §§ 404.1520a(c), 416.920a(c). Third, after rating the degree of functional limitation from the claimant's impairment(s), the ALJ determines the severity of the limitation. Id. §§ 404.1520a(d), 416.920a(d). A rating of “none” or “mild” in the first three functional areas (activities of daily living, social functioning, and concentration, persistence or pace) and “none” in the fourth (episodes of decompensation of extended duration) will result in a finding that the impairment is not severe unless the evidence indicates that there is more than minimal limitation in the claimant's ability to do basic work activities. Id. §§ 404.1520a(d)(1), 416.920a(d)(1). Fourth, if the claimant's impairment is deemed severe, the ALJ compares the medical findings about the severe impairment and the rating and degree and functional limitation to the criteria of the appropriate listed mental disorder to determine if the severe impairment meets or is equal to a listed mental disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if the ALJ finds that the claimant has a severe mental impairment, which neither meets nor equals a listed mental disorder, the ALJ assesses the claimant's residual mental functional capacity. Id. §§ 404.1520a(d)(3), 416.920a(d)(3). The regulations further specify how the findings and conclusion reached in applying the technique must be documented by the ALJ, stating:

The decision must show the significant history, including examination and laboratory findings, the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each functional areas described in paragraph (c) of this section.

20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4).

         Here, the ALJ determined as a preliminary matter that Claimant met the insured status for disability insurance benefits through June 30, 2018. (Tr. at 19, Finding No. 1). At the first step of the sequential evaluation, the ALJ confirmed that Claimant had not engaged in substantial gainful activity since January 1, 2014, the alleged disability onset date. (Id., Finding No. 2). At the second step of the evaluation, the ALJ found that Claimant had the following severe impairments: spine disorder, affective disorder, and anxiety disorder. (Id., Finding No. 3). The ALJ considered Claimant's reported seizure disorder but found the impairment to be non-severe. (Id., Finding No. 3).

         Under the third inquiry, the ALJ concluded that Claimant did not have an impairment or combination of impairments that met or medically equaled any of the impairments contained in the Listing. (Tr. at 20-21, Finding No. 4). Accordingly, the ALJ determined that Claimant possessed:

[T]he residual functional capacity to perform a limited range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she can occasionally lift and carry ten pounds; frequently lift and carry less than ten pounds; sit for six hours in an eight hour day; stand and walk for two hours in an eight hour day; push and pull up to weight limits; she can occasionally reach overhead with the upper extremities, bilaterally; occasionally climb ramps and stairs; occasionally climb ladders, ropes or scaffolds; occasionally balance, stoop or crouch; and never kneel or crawl; she should never work around unprotected heights, moving mechanical parts or extreme cold and she should avoid concentrated exposure to vibration. Due to mental impairments, the claimant can understand, remember and [carry out] instructions; she is limited to performing simple, routine tasks; she can use judgment; she is limited to performing simple, work-related decisions; she can frequently respond appropriately to supervisors and co-workers; occasionally respond appropriately to the public; and she can deal with changes in the work setting.

(Tr. at 21-25, Finding No. 5). At the fourth step, the ALJ determined that Claimant could not perform any of her past relevant work. (Tr. at 26-27, Finding No. 6). Therefore, the ALJ reviewed Claimant's past work experience, age, and education in combination with her RFC to determine her ability to engage in other substantial gainful activity. (Tr. at 27-28, Finding Nos. 7 through 10). The ALJ considered that (1) Claimant was born in 1985 and was defined as a younger individual age 18-44 on the alleged disability onset date; (2) she had at least a high school education and could communicate in English; and (3) transferability of job skills was not an issue because the Medical-Vocational Rules supported a finding that Claimant was “not disabled, ” regardless of her transferable job skills. (Tr. at 27, Finding Nos. 7 through 9). Taking into account these factors, Claimant's RFC, and the testimony of a vocational expert, the ALJ determined that Claimant could perform other jobs that existed in significant numbers in the national economy, including unskilled sedentary work as an inspector and sorter. (Tr. at 27-28, Finding No. 10). Consequently, the ALJ concluded that Claimant was not disabled as defined by the Social Security Act and was not entitled to benefits. (Tr. at 28, Finding No. 11).

         IV. Claimant's Challenges to the Commissioner's Decision

         Claimant argues that the ALJ erroneously evaluated the severity of Claimant's physical and mental impairments; as a result, the ALJ found Claimant capable of performing a limited range of sedentary work when, in truth, she was incapable of substantial gainful activity on any level on a sustained and consistent basis. (ECF No. 9 at 5). In support of this argument, Claimant cites to several medical records detailing her spinal disorder and its associated symptoms. (Id. at 5-6).

         Claimant also contends that the ALJ failed to consider how Claimant's mental impairments further reduced the unskilled sedentary occupational base despite the emphasis placed on that issue in Social Security Ruling 96-9p (“SSR 96-9p”). (Id. at 6). Claimant argues that given the evidence of her anxiety and affective disorder, the ALJ should have ordered a consultative examination to ascertain the severity of her mental impairments and their impact on her ability to work. (Id. at 6-7). Claimant further states that the ALJ should have accepted the opinions of the vocational expert, who testified at the administrative hearing that there were not any jobs that someone with Claimant's RFC could perform if the individual were absent from work more than one day per month and/or off-task for ten percent or more of the work day. (Id.).

         In response to Claimant's challenges, the Commissioner asserts that the ALJ fully considered the medical evidence in this case. (ECF No. 10 at 15). The Commissioner notes that no treating or examining physician found that Claimant had greater limitations than the ALJ included in the RFC assessment. (Id.). In fact, the Commissioner cites that Claimant's treating physician, Katherine Steele, M.D., documented in the clinical record that she refused to write a letter stating that Claimant was unable to work because Dr. Steele believed that Claimant could indeed work notwithstanding her low back pain. (Id.). The Commissioner asserts that the ALJ's RFC finding explicitly compensated for any limitations related to Claimant's spinal impairment because the RFC finding restricted Claimant to less than a full range of sedentary work. (Id.). Furthermore, the Commissioner notes that the ALJ's RFC finding was more restrictive than any of the state agency opinions offered in this matter. The ALJ gave Claimant the benefit of the doubt and considered the record as a whole, including additional evidence submitted subsequent to the agency opinions. (Id.). Furthermore, the Commissioner emphasizes that the ALJ's RFC assessment considered Claimant's allegations of pain, the relatively benign diagnostic testing results, and the fact that Claimant was not taking her medications as prescribed. (Id. at 16).

         In terms of Claimant's mental impairments and SSR 96-9p, the Commissioner states that there was no evidence that Claimant suffered a substantial loss of basic work-related mental abilities on a sustained basis. To the contrary, the evidence established that Claimant's mental symptoms were minimal and responded well to medication. (Id. at 17). Further, the Commissioner notes that the ALJ generously accounted for Claimant's mental limitations by restricting her to simple, routine tasks and simple work-related decisions. (Id. at 18). Finally, as to Claimant's argument that the ALJ should have accepted the vocational expert's testimony that a person with Claimant's characteristics could not work if the person were absent or off-task over a certain threshold, the Commissioner asserts that the testimony was not relevant because the record did not support that Claimant would be absent more than one day per month and/or off-task for ten percent or more of the work day. (Id.). The Commissioner argues that for all of the above reasons and in light of the very deferential standard of review that the Court must apply in reviewing the agency's social security decision, the Court should affirm the Commissioner's decision in Claimant's case. (Id. at 19).

         V. Relevant Evidence

         The undersigned has reviewed all of the evidence before the Court. The information that is most pertinent to Claimant's challenges is summarized as follows:

         A. Treatment Records

         On December 31, 2013, Claimant was in a motor vehicle accident on her way to work. (Tr. at 344). She complained of increased low back pain and underwent a physical therapy evaluation the following month on January 31, 2014. (Tr. at 397). The findings were consistent with post lumbar derangement, and Claimant was adjudged to have good rehabilitation potential. She was scheduled for six weeks of physical therapy at a rate of three sessions per week. (Tr. at 398-99). At Claimant's physical therapy session on March 7, 2014, she reported constant pain that she rated ten on a ten-point scale. (Tr. at 418). Claimant did not have any increased pain throughout her session and showed no evidence of total pain through her facial expressions or complaints. (Tr. at 419). However, Claimant did not report any decrease in pain after the treatment. After completing seven of the eighteen ordered sessions, Claimant ceased attending her physical therapy appointments. On April 10, 2014, she was discharged from physical therapy for failing to appear at the last five appointments. (Tr. at 421).

         On March 20, 2014, Claimant's lumbar spine was x-rayed. (Tr. at 396). Her results were stable when compared to the previous study taken on the day of her car accident. (Id.). Claimant still had only mild levoscoliosis and mild disc space loss in her L4-L5 and L5-S1 spinal segments. (Id.). The following month, on April 2, 2014, Claimant presented to Kimberly Renee Becher, M.D., a resident physician with Marshall Health, to establish a primary care provider. (Tr. at 336). Regarding Claimant's medical history, Dr. Becher noted that Claimant suffered a back injury that initially caused throbbing and stabbing low back pain and that subsequent diagnostic testing revealed herniated discs in Claimant's lumbar spine at ¶ 2-L4. (Id.). Claimant expressed worsening symptoms, including heaviness in her left leg, constant tingling and numbness in the lateral portion of her left leg below the knee, and throbbing in the left leg above the knee. (Id.). Claimant stated that she was unable to stand for more than ten minutes at one time and she received no relief from physical therapy. Claimant also reported that she was “feeling down” and had a hard time controlling her anger now that she was forced to be sedentary. (Id.). On examination, Claimant had decreased sensation in her left foot and left lateral calf and had no deep tendon reflexes on the left side. (Tr. at 338). Dr. Becher concluded that there was no need to complete the straight leg raising test because Claimant was already ...


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