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«UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Wendi Carlson, Civil No. 06-3289 (ADM/SRN) Plaintiff, v. REPORT AND RECOMMENDATION Michael J. ...»

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Vocational Expert Norman Mastbaum conducted a vocational analysis of Plaintiff and testified at the administrative hearing. (Id. at 193, 416.) The ALJ instructed the VE that Plaintiff was over fifty years of age, had more than a high school education, and had no difficulties with communication. (Id. at 416-17.) The ALJ then asked the VE to assume that Plaintiff was limited to light work, could lift no more than ten pounds occasionally, could type no more than twenty minutes in an eight hour day, and CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 8 of 23 could make only occasional repetitive motions with her wrists. (Id. at 417.) The VE concluded that Plaintiff could not perform her past work as a data conversion operator, clerical generalist, or restaurant server. (Id. at 418.) However, the VE opined that Plaintiff could work as a gate guard, of which there are 3,000 jobs in the state; a checker of merchandise or freight, of which there are 2,000 jobs; and a room service clerk, of which there are 4,200 jobs. (Id. at 420-21.) When the ALJ modified the assumed limitations to include the ability to work for only forty-five minutes of every hour, the VE said that employment would be precluded. (Id. at 425.) Plaintiff’s attorney also questioned the VE at the hearing. (Id. at 430.) Specifically, he asked the VE to compare the range of work for the jobs of gate guard, checker, and room service clerk, with the full range of work available to a person who could do unskilled sedentary employment. (Id.) The VE stated that the latter range of work was greater. (Id.) The ALJ interjected, calling the answer “totally irrelevant.” (Id.) Plaintiff’s attorney argued to the ALJ that the testimony was relevant because it showed Plaintiff was restricted to a range of work less than the range of work available to someone who would be found disabled under the “grids.”1 (Id. at 431.)

–  –  –

As a threshold matter, the ALJ noted that Plaintiff met the insured status requirements for entitlement to benefits from the alleged onset of disability date through the date of the decision. (Id. at 15.) The ALJ then engaged in the required five-step sequential evaluation: (1) whether the claimant is The “Medical/Vocational Guidelines” or “grids” are found at 20 C.F.R. § 404, Subpart P, Appendix 2. These guidelines were promulgated to ensure uniform consideration of the various vocational factors (age, education, and work experience) in combination with a claimant’s RFC. 20 C.F.R. § 404, Subpt. P, App. 2, § 200.

CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 9 of 23 engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) whether the claimant is capable of returning to work she has done in the past; and (5) whether the claimant can do other work that exists in significant numbers in the regional or national economy.

See 20 C.F.R. § 404.1520(a)-(f).

The ALJ found that Plaintiff had not engaged in substantial gainful activity since March 4, 2004.

(Tr. at 15.) The ALJ also found that Plaintiff was severely impaired by bilateral carpal tunnel syndrome, status-post release surgery, but that her impairment did not meet or medically equal a listed impairment. (Id. at 15-16.) Turning to step four, the ALJ found that Plaintiff was generally credible, but that her testimony did not support her claim that she was totally disabled. (Id. at 21.) The ALJ noted particularly that the objective medical evidence did not support disabling pain, disabling severity of condition, or significant loss in strength, sensation, or range of motion. (Id. at 17-18.) For example, recent medical records did not document any significant pain, weakness, numbness, or self-reports of hands falling asleep. (Id. at 18.) The ALJ gave controlling weight to Dr. Eckman’s opinion of February 27, 2004, noting that Dr.

Eckman thought Plaintiff could use her hands and perform light clerical duties as long as she avoided heavy and repetitive motions. (Id.) In addition, the ALJ recalled Dr. Eckman’s opinion that Plaintiff could increase her working hours if she found a job that would reduce the stress on her hands and wrists. (Id.) The ALJ further recalled that Dr. Eckman did not restrict Plaintiff to working only fortyfive minutes of an hour for every task; he suggested this limitation only for repetitive use of the hands.

(Id.) Finally, the ALJ observed that Dr. Eckman’s conclusions in 2002 preceded the alleged onset CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 10 of 23 date of March 4, 2004. (Id. at 18-19.) After weighing the objective medical evidence and Plaintiff’s testimony, the ALJ determined that Plaintiff had the RFC2 to perform a range of light work, subject to lifting no more than ten pounds occasionally, that avoids use of vibrating tools with the hands, with no more than about twenty minutes of typing per eight hour day, with no more than occasional repetitive motions of the wrist that requires flexion, extension, pronation, or supination, though with no limit in use of the arms, but in use of the fingers, for example[,] she can occasionally grip a steering wheel, and with an unlimited ability in walking or standing.

(Id. at 21.) Given this RFC, the ALJ concluded that Plaintiff could not perform her past relevant work, but that she could perform other work existing in significant numbers in the regional economy. (Id. at 20.) In particular, Plaintiff could work in approximately 3,000 positions as a gate guard or merchant patroller, in approximately 2,000 positions as a checker, and in approximately 4,200 positions as a room service clerk. (Id.) Therefore, at the fifth step of the analysis, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act.





II. STANDARD OF REVIEW

Congress has prescribed the standards by which Social Security disability benefits may be awarded. “The Social Security program provides benefits to people who are aged, blind, or who suffer from a physical or mental disability.” Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992).

“Disability” under the Social Security Act is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(A). The RFC is defined as the most that a claimant can do despite his or her limitations. 20 C.F.R.

§ 404.1545(a)(1).

CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 11 of 23 claimant’s impairments must be “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). The impairment must have lasted or be expected to last for a continuous period of at least twelve months, or be expected to result in death. Id. § 423(d)(1)(A).

–  –  –

If a claimant’s initial application for benefits is denied, he or she may request reconsideration of the decision. 20 C.F.R. § 404.909(a)(1). A claimant who is dissatisfied with the reconsidered decision may obtain administrative review by an ALJ. Id. § 404.929. If the claimant is dissatisfied with the ALJ’s decision, he or she may request review by the Appeals Council, although review is not automatic. Id. §§ 404.967-.982. The decision of the Appeals Council, or of the ALJ if the request for review is denied, is final and binding upon the claimant unless the matter is appealed to a federal district court within sixty days after notice of the Appeals Council’s action. 42 U.S.C. §§ 405(g), 1383(c)(3);

20 C.F.R. § 404.981.

–  –  –

Judicial review of the Commissioner’s decision is limited to a determination of whether the decision is supported by substantial evidence in the record as a whole. Hutsell v. Sullivan, 892 F.2d 747, 748-49 (8th Cir. 1989). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

The review is “more than a mere search of the record for evidence supporting the [Commissioner’s] finding.” Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).

CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 12 of 23 Rather, “‘the substantiality of evidence must take into account whatever in the record fairly detracts from its weight.’” Id. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).

The reviewing court must review the record and consider:

–  –  –

Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989) (citing Brand, 623 F.2d at 527). A court may not reverse the Commissioner’s decision simply because substantial evidence would support an opposite conclusion, Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984), and in reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact, Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). Instead, the court must consider “the weight of the evidence in the record and apply a balancing test to evidence which is contradictory.” Gavin v.

Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987). If it is possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner’s decision, the court must affirm that decision. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 13 of 23

III. DISCUSSION

–  –  –

Plaintiff argues that the ALJ failed to consider her age in determining whether she was disabled.

However, Plaintiff’s argument has no basis in the record. The ALJ included Plaintiff’s age in the question he posed to the VE, and the ALJ based his decision primarily on the resulting testimony of the VE. The ALJ noted in his decision that Plaintiff was an individual “closely approaching advanced age,” as defined by 20 C.F.R. § 404.1563. Thus, the ALJ properly considered Plaintiff’s age.

B. The ALJ’s Consideration of Evidence from Plaintiff’s Treating Physician Plaintiff contends that the ALJ failed to give controlling weight to Dr. Eckman’s opinions that she could only work four hours a day, perform sedentary work, and work for forty-five minutes of every hour. Although Dr. Eckman did state these opinions during the course of Plaintiff’s treatment, the opinions cannot be viewed in isolation, as Plaintiff urges.

In May 2001, Dr. Eckman recommended that Plaintiff continue to work twenty hours a week at her USPS job. In November 2001, Dr. Eckman suggested that Plaintiff find another job that could better accommodate her restrictions. Dr. Eckman noted a few weeks later that as long as Plaintiff continued to work at her USPS job, she should have a fifteen minute break every hour. In 2002, Dr.

Eckman remarked that Plaintiff would be able to increase her work hours if she would find a job with less wrist and hand stress. Plaintiff did not visit Dr. Eckman after March 14, 2002. In February 2004, almost two years later, yet still before the alleged onset of disability date, Dr. Eckman wrote that Plaintiff could type occasionally, and answer telephones, take messages, and perform other light clerical duties on a regular basis. He emphasized that only heavy and repetitive activities would exacerbate her CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 14 of 23 symptoms. He did not repeat his previous restrictions of part-time work and fifteen minute rest intervals, nor did he indicate that Plaintiff could perform only sedentary jobs.

The opinions expressed by Dr. Eckman in 2004 are consistent with the views of Dr. Johnson, the consultative examiner, and Plaintiff’s subsequent doctor at SuperiorHealth Medical Group. Dr.

Johnson opined that Plaintiff’s job at USPS exacerbated her symptoms, and he noted that there were more suitable jobs for Plaintiff. In May 2005, Plaintiff’s doctor noted that Plaintiff reported only variable achiness in her hand and wrist and that her symptoms were fairly well controlled with medication.

“A treating physician’s opinion is generally entitled to substantial weight....” Kelley v.

Callahan, 133 F.3d 583, 589 (1998). Here, the Court finds that the ALJ gave controlling weight to Dr.

Eckman’s opinion—including the limitations Dr. Eckman placed on his own opinion. Specifically, Dr.

Eckman qualified his opinion by noting that Plaintiff would be able to increase her working hours if she would find work involving less hand and wrist stress. The physical restrictions imposed by Dr. Eckman related solely to the nature of Plaintiff’s job as a data conversion clerk at USPS. Because Plaintiff, concededly, can no longer perform that job, Dr. Eckman’s limitations no longer apply. It was therefore appropriate for the ALJ to disregard that aspect of Dr. Eckman’s opinion.

In addition, the Court notes that Plaintiff’s onset of disability date was March 4, 2004. Dr.

Eckman’s opinions in 2001 and 2002 consequently are less relevant than his February 2004 opinion, which is temporally closer to the alleged onset of disability date. See Dobson v. Chater, 927 F. Supp.

1265, 1273 (D. Neb. 1996). Dr. Eckman’s opinion expressed in 2004 did not repeat the earlier restrictions on which Plaintiff relies, and the opinion was entirely consistent with the later opinions of Dr.

CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 15 of 23 Johnson and Plaintiff’s doctor at SuperiorHealth Medical Group.

Considering the chronology and context of Dr. Eckman’s opinions, the Court finds that the ALJ did not err in rejecting the restrictions of working twenty hours a week, resting fifteen minutes every hour, and performing only work of a sedentary nature.



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