Eutenauer v. Bisignano

Background

Plaintiff Jean E. was found disabled in 2006 due to profound hearing loss that met a presumptively disabling listing (Listing 2.11B, related to hearing disorders). Her disability status was confirmed in a continuing review in March 2015. The Social Security Administration later determined that her eligibility for benefits ended on October 1, 2018, because she had engaged in substantial gainful activity (work at a level that disqualifies a claimant from disability benefits). She did not appeal that termination decision.

On December 27, 2020, Jean E. filed a request for expedited reinstatement of benefits — a process that allows a claimant whose benefits were previously terminated due to work activity to seek reinstatement of prior entitlement rather than filing a brand-new application. The agency denied that request at two levels of administrative review. Following a video hearing before Administrative Law Judge Keith Kearney (ALJ), who also arranged for an independent psychiatric evaluation, the ALJ issued a decision on April 3, 2023, denying the reinstatement request. The ALJ found that Jean E. had experienced "medical improvement" — a decrease in the severity of the impairments that had supported her disability finding — and was no longer disabled. The Appeals Council denied review on March 15, 2024, making the ALJ's decision the final agency decision. Jean E. then filed this federal court action on May 11, 2024.

Both parties consented to disposition by a United States Magistrate Judge. Jean E. filed a brief requesting reversal and remand, as well as a separate motion for summary judgment. The Commissioner (Frank Bisignano, in his official capacity) filed a brief asking the court to affirm the agency's decision and dismiss the action.

Procedural Preliminary: Motion for Summary Judgment Stricken

As a threshold matter, the court struck Jean E.'s motion for summary judgment (Dkt. 16) as filed in error. The Federal Supplemental Rules of Civil Procedure governing Social Security appeals no longer permit summary judgment motions in this type of case; the parties are required to present arguments through briefs (memoranda). The court therefore addressed only the parties' briefs.

Standard of Review

Requests for expedited reinstatement of benefits are evaluated under the "medical improvement review" standard, which applies an eight-step sequential analysis. This standard requires the ALJ to compare the claimant's current condition with her condition at the time of the most recent favorable disability determination (called the "comparison point decision"). Medical improvement is defined as any decrease in the medical severity of the impairments that supported the last favorable determination, shown by changes in symptoms, signs, or laboratory findings.

Judicial review of the Commissioner's decision is limited to whether it is supported by "substantial evidence" — meaning less than a preponderance, but enough that a reasonable mind would find it adequate to support the conclusion. The court may not substitute its own judgment for that of the ALJ or reverse merely because evidence in the record could support a different conclusion.

The ALJ's Eight-Step Analysis

The comparison point decision was the March 4, 2015, determination that Jean E. continued to be disabled based on Listing 2.11B (hearing loss). Jean E. did not challenge this identification.

- Step 1: The ALJ found Jean E. engaged in substantial gainful activity in the fourth quarter of 2020, including December 2020, but that her earnings did not exceed substantial gainful activity levels after December 2020. The ALJ continued the analysis for the period from December 1, 2020, through April 3, 2023 (the "adjudicated period"). - Step 2: The ALJ found no impairment or combination of impairments meeting or medically equaling a listed impairment. Jean E. challenged this finding. - Step 3: The ALJ found medical improvement — specifically, that while Jean E. could not understand conversational speech at the time of the comparison point decision, testing from July 2, 2020, showed she could understand conversational speech after receiving cochlear implants. - Step 4: The ALJ found the medical improvement related to her ability to work. Jean E. did not directly challenge this finding. Because medical improvement related to work ability was found, step 5 (which applies only when there is no improvement or the improvement is not work-related) was skipped. - Step 6: The ALJ found Jean E. had severe impairments since December 1, 2020. Jean E. did not challenge this. - RFC Determination (between steps 6 and 7): The ALJ determined Jean E.'s residual functional capacity (RFC — the most a claimant can do despite her limitations) allowed her to perform "light work" with restrictions including: only occasional ramps/stairs; no ladders, ropes, or scaffolds; no concentrated noise exposure; no jobs requiring hearing for safety or use of a telephone; no exposure to hazards such as heights or machinery; and no concentrated exposure to dust, fumes, or poorly ventilated areas. Jean E. challenged this RFC determination. - Step 7: The ALJ found no past relevant work. Jean E. did not challenge this. - Step 8: Relying on testimony from vocational expert David Salewsky, the ALJ found that jobs existed in significant numbers in the national economy that Jean E. could perform within her RFC: housekeeping cleaner (193,000 positions), merchandise maker (191,000 positions), and cleaner and polisher (43,000 positions). Jean E. implicitly challenged this finding through her RFC challenge.

The ALJ also found Jean E.'s subjective statements about the intensity and limiting effects of her symptoms not entirely consistent with the objective medical evidence. Jean E. did not challenge this credibility determination.

Analysis of Jean E.'s Three Arguments

A. Mental Health Impairments and Listing Equivalency

Jean E. argued the ALJ failed to fully develop the record by not considering whether her mental health impairments independently met or medically equaled a disability listing. She based this on her reading of a "Medical Consultant Review (Mental)" form completed by state agency consultant Ray Conroe, Ph.D., L.P., as part of the 2015 continuing review. Jean E. believed Mr. Conroe had opined that she met an unspecified mental health listing.

The court rejected this argument as unsupported by the record. Mr. Conroe's form did not indicate that Jean E.'s mental health impairments met or equaled any mental health listing. His separately completed "Psychiatric Review Technique" form specifically stated that her mental health functional limitations were below the threshold necessary to meet or equal any relevant listing. Because the factual premise of Jean E.'s argument was not supported by the record, the ALJ did not err.

B. Substantial Gainful Activity Calculations

Jean E. argued the ALJ incorrectly calculated her earnings for December 2020, contending that her gross earnings in December alone were below the 2020 monthly substantial gainful activity threshold of $1,260. She added two December pay figures and argued the total was under the threshold.

The court rejected this argument for two independent reasons.

First, substantial gainful activity is calculated using a monthly average of earnings over the relevant year or fiscal quarter — not by looking at a single month in isolation. See 20 C.F.R. § 404.1574(b)(2)(ii). Jean E. earned $4,085.00 during the entire fourth quarter of 2020 and worked all three months. Dividing by three yields a monthly average of $1,361.66, which exceeds the $1,260 threshold by $101.66. The court found this constituted substantial evidence supporting the ALJ's step-one finding.

Second, even if the ALJ had erred at step one, the error was harmless because the ALJ did not stop the analysis at step one. The only potential harm from a miscalculated substantial gainful activity finding at step one would be if the ALJ had ended the sequential analysis there; instead, the ALJ proceeded through all eight steps on the merits. Jean E. bore the burden of showing the alleged error would have changed the outcome, see Shinseki v. Sanders, 556 U.S. 396, 409 (2009); Byes v. Astrue, 687 F.3d 913, 917-18 (8th Cir. 2012), and she made no such showing.

The court also noted separately that Jean E.'s attempt to challenge the November 15, 2020, termination decision (which ended her benefits starting October 2018) was not properly before the court because she never appealed that decision.

C. Part-Time Work with Accommodations

Jean E. argued the ALJ's RFC determination was flawed because it failed to properly account for the fact that her work at Walmart was part-time and performed with employer accommodations. She contended that a proper consideration of her actual work circumstances would have resulted in a more restrictive RFC and an ultimate finding of disability.

The court rejected this argument for two reasons. First, Jean E.'s argument relied heavily on her own testimony, but she did not challenge the ALJ's finding that her subjective statements were not entirely consistent with the objective medical evidence. An RFC argument resting solely on testimony that the ALJ permissibly discounted is unpersuasive. Second, the ALJ had specifically discussed the evidence Jean E. cited — including her testimony about part-time work and employer accommodations — and Jean E. was not pointing to evidence the ALJ overlooked; she was asking the court to weigh the evidence differently. Under the applicable standard of review, the court may not substitute its judgment for the ALJ's or reverse based on evidence in the record that could support a different conclusion. See Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015).

The court also noted in a footnote that part-time work may be considered in assessing a person's ability to perform substantial gainful activity under Eighth Circuit precedent.

D. Substantial Evidence Review

Beyond the three specific arguments, the court conducted an overall substantial evidence review. It concluded that substantial evidence in the record supported the ALJ's findings of medical improvement (documented by Jean E.'s improvement in word recognition scores from 43% bilaterally in 2015 to 84% in her left ear, 76% in her right ear, and at least 88% bilaterally by July 2020, reaching above-average performance for cochlear implant users), the relationship of that improvement to her ability to work, the RFC determination, and the finding that jobs existed in significant numbers in the national economy that she could perform.

Disposition

The court directed that judgment be entered accordingly.