Opinion
CIV-20-417-J
03-10-2022
MATTHEW SHIMANEK, Successor-In-Interest to DENA ASPEN, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, [1] Defendant.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Matthew Shimanek (“Plaintiff”) brings this action on behalf of his deceased mother, Dena Aspen (“Claimant”), pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration (“SSA”) denying Claimant's application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and for supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83f. (Doc. 1).
Citations to the parties' briefs refer to the Court's CM/ECF pagination. Citations to the Administrative Record refer to its original pagination.
United States District Judge Bernard M. Jones referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C) and Federal Rule of Civil Procedure 72(b). (Doc. 27). The Commissioner has answered the Complaint and filed the Administrative Record (“AR”) (Docs. 16, 19), and the parties have fully briefed the issues. (Docs. 22, 28). Now, for the reasons set forth below, the undersigned recommends that the Court AFFIRM the Commissioner's decision.
I. Procedural History
Claimant filed applications in June of 2017 for DIB and SSI, alleging a disability onset date of June 17, 2016. (AR, at 202, 207). Claimant's last date insured was June 30, 2017. (Id. at 20, 22, 66). The SSA denied the applications initially and on reconsideration. (Id. at 66-74, 84-93). An administrative hearing was then held on September 20, 2018. (Id. at 40-63). On February 21, 2019, the Administrative Law Judge (“ALJ”) issued a decision finding that Claimant was not disabled from the onset date through the date of the decision. (Id. at 19-30). The Appeals Council subsequently denied Claimant's request for review. (Id. at 4-8). Thus, the ALJ's decision is the final decision of the Commissioner. Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009); 20 C.F.R. § 404.981. Claimant died in June 2020. (AR, at 3). Plaintiff, Claimant's son, was substituted as a party in this appeal. (Id. at 1).
II. The Administrative Decision
At Step One, the ALJ found that Claimant had not engaged in substantial gainful activity since June 17, 2016, the alleged onset date. (AR, at 22). At Step Two, the ALJ found that Claimant had the severe impairments of degenerative disc disease of the lumbar and cervical spine, status post anterior cervical discectomy and fusion (ACDF), and osteoarthritis. (Id. at 22-24). At Step Three, the ALJ found that Claimant had no impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Id. at 24). The ALJ then determined that Claimant had the RFC to perform the full range of light work. (Id. at 25-29). At Step Four, the ALJ found that Claimant could perform her past relevant work as a Medical Assistant. (Id. at 29). Accordingly, the ALJ ultimately found that Claimant had not been under a disability since June 17, 2016. (Id.)
III. Claims Presented for Judicial Review
On appeal, Plaintiff raises three issues regarding the ALJ's analysis. (Doc. 22, at 3). First, Plaintiff claims that the ALJ failed to properly consider the entire record and all of Claimant's impairments, causing the ALJ's determination at Step Two to fail. (Id. at 4-6). Plaintiff then accuses the ALJ of violating the Winfrey test by failing to account for all of Claimant's physical and mental limitations while formulating the RFC and questioning the vocational expert (“VE”) and considering the demands of Claimant's past relevant work. (Id. at 6-8). Finally, Plaintiff alleges that the ALJ failed to properly consider “the extent to which the intensity[, ] persistence[, ] and limiting effects of Claimant's symptoms affect[ed] her ability to perform work-related activity.” (Id. at 3).
The Commissioner asserts that because Claimant died in June of 2020, following the ALJ's decision, and there were no eligible parties that could be substituted, her SSI claim has been extinguished and is no longer at issue. (Doc. 28, at 1, 6). Next, the Commissioner contends that Plaintiff, in seeking to overturn the ALJ's decision as it relates to the determination of the DIB claim, is limited to medical evidence from June 2016, the alleged onset date, to June 2017, the last insured date. (Id. at 6-9). And the Commissioner argues that with that limited medical evidence, Plaintiff could not prove disability for purposes of DIB. (Id.) Specifically, the Commissioner maintains that Claimant failed to prove at Step Two that some of her impairments were severe prior to Claimant's last insured date. (Id. at 8-11).
IV. The Disability Standard and Standard of Review
The Social Security Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). A physical or mental impairment is an impairment “that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). A medically determinable impairment must be established by “objective medical evidence” from an “acceptable medical source, ” such as a licensed physician or a licensed and certified psychologist; whereas the claimant's own “statement of symptoms, a diagnosis, or a medical opinion” is not sufficient to establish the existence of an impairment. 20 C.F.R. §§ 404.1521, 416.921. See 20 C.F.R. §§ 404.1502(a), 404.1513(a), 416.902(a), 416.913(a). A plaintiff is disabled under the Social Security Act “only if his physical or mental impairment or impairments are 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 . . . .” 42 U.S.C. § 423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (explaining five steps and burden-shifting process). To determine whether a claimant is disabled, the Commissioner inquires: (1) whether the claimant is engaged in any substantial gainful activity; (2) whether the claimant suffers from a severe impairment or combination of impairments; (3) whether the impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) considering the Commissioner's assessment of the claimant's residual functional capacity (“RFC”), whether the impairment prevents the claimant from continuing claimant's past relevant work; and (5) considering assessment of the RFC and other factors, whether the claimant can perform other types of work existing in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). Plaintiff bears the “burden of establishing a prima facie case of disability under steps one, two, and four” of the SSA's five-step procedure. Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). If the plaintiff makes this prima facie showing, “the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of [claimant's] age, education, and work experience.” Id. “The claimant is entitled to disability benefits only if [Claimant] is not able to perform other work.” Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
RFC is “the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. § 416.945(a)(1).
This Court's review of the Commissioner's final decision is limited “to determin[ing] whether the Commissioner applied the correct legal standards and whether the agency's factual findings are supported by substantial evidence.” Noreja v. Commissioner, SSA, 952 F.3d. 1172, 1177 (10th Cir. 2020) (citation omitted). Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “It means - and means only - such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal quotation marks and citation omitted). A court's review is based on the administrative record, and a court must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted). Even if a court might have reached a different conclusion, the Commissioner's decision stands if it is supported by substantial evidence. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).
V. Analysis
A. Claimant's SSI Claim Is Extinguished.
The Commissioner has correctly argued, and Plaintiff does not dispute, that Plaintiff, as Claimant's son, is ineligible for Claimant's SSI benefits under 20 C.F.R. § 416.542(b), which permits only a spouse or parent of a disabled child to be substituted as parties to sue for SSI benefits for a deceased Claimant. Thus, Claimant's SSI claim was extinguished at her death. Plaintiff's sole surviving claim is for Claimant's DIB.
B. Plaintiff Failed To Prove Disability Prior to Claimant's Last Insured Date of June 30, 2017.
“[T]he relevant analysis is whether the claimant was actually disabled prior to the expiration of her insured status.” Potter v. Sec'y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990) (emphasis in original)). See 20 C.F.R. §§ 404.101, 404.120, 404.315. Thus, the operative timeframe for purposes of Claimant's DIB claim is beginning June 17, 2016, with Claimant's alleged onset of disability, and ending June 30, 2017, with Claimant's last date insured. Hendron v. Colvin, 767 F.3d 951, 953 (10th Cir. 2014) (holding that when determining “whether [the claimant] was under a disability as defined in the Social Security Act, ” the “[r]elevant [t]ime [p]eriod” is from the claimant's alleged onset date though the date the claimant was last insured for disability benefits).
The ALJ analyzed the record after June 30, 2017, up to the date of the administrative hearing because Claimant's SSI claim was still at issue.
At the second step of the sequential evaluation, the ALJ considers “whether the claimant has a medically severe impairment or combination of impairments.” Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987). The SSA's “severity regulation, ” see 20 C.F.R. § 404.1520(c), governs the determination. Id. at 141. Under the regulation, “[i]f [the claimant] do[es] not have any impairment or combination of impairments which significantly limits [her] physical or mental ability to do basic work activities, [the ALJ] will find that [he claimant] do[es] not have a severe impairment and [is], therefore, not disabled.” 20 C.F.R. § 404.1520(c). See Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988). Although the claimant must make only a “de minimis” showing that the medical condition is medically severe, he or she “must show more than the mere presence of a condition or ailment.” Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). A claimant's eligibility for DIB turns on the severity of her condition prior to her date last insured, not as of the date of her application. Huston v. Bowen, 838 F.2d 1125, 1127 (10th Cir. 1988).
The Commissioner set forth, and Plaintiff did not dispute, Claimant's medical record from June 2016 through June 2017 as follows:
From June 2016 through May 2017, the claimant saw her primary care provider G. Douglas Menz, D.O., five times for medication refills (Tr. 290-298). Dr. Menz noted that the claimant took Ambien for her insomnia without difficulty or side effects (Tr. 292, 293, 295). Dr. Menz also noted that the claimant was taking Prozac for depression, but in May 2017, she reported that she stopped taking it and “seem[ed] to be doing fine without it” (Tr. 290). The claimant did not complain of any back pain, joint pain, or any other issues at any of these appointments (Tr. 290-298). Dr. Menz's physical examination findings were normal (Tr. 290-298). The claimant's blood pressure varied during this time, with elevated readings at some appointments, but normal readings at other appointments (Tr. 290, 292, 293, 295, 297).(Doc. 28, at 2-3) (citing AR as “Tr.”). Claimant first complained of joint pain in August 2017 and back pain in November 2017. (Id. at 3) (citing AR, at 336, 339). Both of these appointments were after Claimant's date of last insured.
Medical records during an insured period are direct evidence of a claimant's condition during that period. Baca v. Dep't of Health & Human Servs., 5 F.3d 476, 479 (10th Cir. 1993). Medical records that post-date the insured period may constitute indirect evidence of a claimant's condition during the insured period and, if so, should also be considered to the extent they provide information about the nature and severity of claimant's condition during the insured period. See id.
The medical records from the insured period indicate that Claimant's only medically determinable impairments were insomnia and depression. Even after considering the Claimant's full medical record from the disability onset date to the date of her hearing, the ALJ found that these impairments, “considered singly and in combination, do not cause more than minimal limitation in the [C]laimant's ability to perform basic mental work activities and are therefore nonsevere.” (AR, at 23). The ALJ analyzed these impairments appropriately, by considering the four broad areas of mental functioning (the “paragraph B” criteria), ultimately determining that Claimant has no limitations in any area. (Id. at 23-24). The ALJ supported his findings with opinions of State agency psychologists as well as the medical records cited above. (Id. at 24). Thus, the ALJ's finding that Claimant's insomnia and depression were non-severe is supported by a correct legal analysis and substantial evidence. Plaintiff has not suggested or produced evidence to the contrary. Because Claimant had no severe impairments during the insured time period, she was not disabled during that time period. 20 C.F.R. § 404.1520(c). Plaintiff's other arguments are irrelevant, as they address impairments and symptoms that arose after the date of last insured. Accordingly, the ALJ's decision should be affirmed.
VI. Recommendation and Notice of Right to Object
Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned recommends that the Court AFFIRM the Commissioner's decision.
The parties are advised of their right to file written objections to this Report and Recommendation in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Any such objections must be filed with the Clerk of this Court by March 24, 2022. The parties are further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in this case.
SO ORDERED.