United States District Court, D. North Dakota
Vicki L. Moldenhauer, Plaintiff,
Acting Social Security Administration Commissioner, Carolyn W. Colvin, Defendant.
REPORT AND RECOMMENDATION
KAREN K. KLEIN, Magistrate Judge.
Plaintiff Vicki L. Moldenhauer (hereafter "Moldenhauer", "plaintiff", or "claimant") initiated this action under 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Social Security (hereafter "Commissioner" or "defendant") denying her application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and denying her application for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c. Both parties have moved for summary judgment. (Doc. #12, Doc. #16).
Summary of Recommendation
The magistrate judge finds the Administrative Law Judge (hereafter "ALJ") adequately explained and supported his determination that Moldenhauer was not disabled with substantial evidence from the record as a whole. It is RECOMMENDED that the decision of the Commissioner be AFFIRMED.
Moldenhauer protectively filed her application for disability insurance benefits on September 28, 2009 under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Moldenhauer alleged a disability onset date of May 31, 2007. (Tr. 142). Moldenhauer's application was denied on initial review and again on reconsideration. (Tr. 80-83). She requested a hearing on April 20, 2010. (Tr. 95-96). A hearing was held before ALJ Theodore P. Kennedy. (Tr. 34-79). Moldenhauer appeared with her attorney, Gary Ficek, and testified at the hearing. (Tr. 34-79). Lorn Hagenson, a vocational expert, also testified at the hearing. (Tr. 74-78). The ALJ issued a decision on April 7, 2011, finding that Moldenhauer was not disabled. (Tr. 6-18). Moldenhauer requested a review of the ALJ's decision on August 4, 2011. (Tr. 6-10). The Appeals Council denied Moldenhauer's request for review of the ALJ's decision (Tr. 1-5), making the ALJ's decision the final decision of the Commissioner.
Moldenhauer was 60 at the time of the hearing. (Tr. 36). She is a high school graduate. (Tr. 36). Prior to her alleged disability date, Moldenhauer worked as an office worker, house cleaner, motel maid, food preparer, and a sales clerk. (Tr. 257). Moldenhauer alleges she is disabled because she suffers from osteoarthritis, fibromyalgia, degenerative disc disease, bipolar disorder, and obesity. (Tr. 36-38); Plaintiff's Br., Doc. #11.
Upon review of the pleadings and transcript of the record, the court can affirm, modify, or reverse the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). To affirm the Commissioner's decision, the court must find substantial evidence appearing in the record as a whole supports the decision. See id.; Cruse v. Bowen , 867 F.2d 1183, 1184 (8th Cir. 1989). "Substantial evidence is such relevant evidence as a reasonable mind might find adequate to support a conclusion." Baumgarten v. Chater , 75 F.3d 366, 368 (8th Cir. 1996) (internal quotation omitted)."This standard requires a more searching review than the substantial evidence standard, and [the court will] take into account record evidence that fairly detracts from the ALJ's decision." Tilley v. Astrue , 580 F.3d 675, 679 (8th Cir. 2009) (citing Minor v. Astrue , 574 F.3d 625, 627 (8th Cir. 2009)).
The court must "take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Minor , 574 F.3d at 627 (citing Wilson v. Sullivan , 886 F.2d 172, 175 (8th Cir. 1989)) (quoting Jackson v. Bowen , 873 F.2d 1111, 1113 (8th Cir. 1998)). See also, Burress v. Apfel , 141 F.3d 875, 878 (8th Cir. 1998) ("As this court has repeatedly stated, the substantial evidence in the record as a whole' standard is not synonymous with the less rigorous substantial evidence' standard."); Gavin v. Heckler , 811 F.2d 1195, 1199 (8th Cir. 1987) ("It is not sufficient for the district court to simply say there exists substantial evidence supporting the [Commissioner] and therefore the [Commissioner] must be sustained."). "If in reviewing the Social Security Commissioner's denial of an application for disability benefits 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." Lorence v. Astrue , 691 F.Supp.2d 1008 (D. Minn. 2010). The "court will not disturb [the] denial of social security disability benefits so long as ALJ's decision falls within [an] available zone of choice." Casey v. Astrue , 503 F.3d 687, 691 (8th Cir. 2007).
The ALJ applied the familiar five-step test to determine whether Moldenhauer was disabled. The ALJ determined Moldenhauer had not engaged in any substantial gainful activity since June 5, 2007, the alleged disability onset date. (Tr. 17). He found Moldenhauer had the following severe impairments: degenerative disc disease of the spine, affective disorder, and obesity. (Tr. 17). The ALJ also determined Moldenhauer had the following non-severe impairments: hypertension and diabetes mellitus. (Tr. 18). The ALJ concluded Moldenhauer has the residual functional capacity to perform light work, and therefore determined Moldenhauer was able to perform her past relevant work as a motel maid. (Tr. 20, 27). He further noted plaintiff's past relevant work did not "require the performance of work-related activities precluded by the claimant's residual functional capacity." (Tr. 27). Moldenhauer alleges the ALJ erred by: (1) failing to give proper weight to the opinions of occupational therapists Nelson and Heitkamp; and (2) failing to support his disability determination with substantial evidence in the record as a whole. Plaintiff's Brief, at 39, Doc. #17.
I. The ALJ gave sufficient weight to the opinions of Moldenhauer's non-medical sources
First, Moldenhauer contends ALJ Kennedy committed reversible error because he failed to give the opinions of occupational therapists Nelson and Heitkamp appropriate weight. (Tr. 14). Specifically, Moldenhauer claims Nelson and Heitkamp's opinions regarding Moldenhauer's physical limitations and her inability to perform more than sedentary work for up to four hours a day required the ALJ determine Moldenhauer disabled. Plaintiff's Brief, at 17, Doc. #13. The Commissioner argues the ALJ's decision to afford Nelson and Heitkamp's opinions little weight was proper given the inconsistency of the opinions with the medical evidence on record, the opinion of the state-agency examining physician Dr. Espejo, the opinions of non-examining ...