Kasak v. Commissioner of Social Security
MEMORANDUM Opinion and Order affirming the decision of the Administrative Law Judge. Judgment shall be entered in favor of the Commissioner and against claimant. Signed by Magistrate Judge CJ Williams on 3/20/2017. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND
Plaintiff, Heather Kasak (claimant), seeks judicial review of a final decision of the
Commissioner of Social Security (Commissioner) denying claimant’s application for
disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §
401 et seq. (Act). For the reasons that follow, the Court affirms the Commissioner’s
Claimant was born in 1980, graduated from high school, and previously worked
as an accounting clerk, in-home childcare provider, and advertising clerk. AR 218; Doc.
11, at 4. Claimant filed an application for DIB on July 31, 2012, alleging a disability
onset date of May 4, 2012. Doc. 11, at 1. She contended she was disabled due to the
following impairments: chronic fatigue syndrome; fibromyalgia; migraine headaches;
depressive disorder; anxiety disorder; cognitive disorder, not otherwise specified; empty
sella syndrome; Epstein-Barr virus; and orthostatic hypertension.
Commissioner denied claimant’s application initially and on reconsideration. Doc. 11,
On February 4, 2013, claimant requested a hearing before an Administrative Law
Judge (ALJ). Doc. 11, at 1. On February 13, 2014, ALJ Jo Ann L. Draper conducted
a video hearing, at which claimant, claimant’s attorney, Mary K. Hoefer, and a
vocational expert testified. AR 59 & 81. On April 25, 2014, the ALJ issued a decision
denying claimant’s claims. AR 56-80. On August 5, 2015, the Appeals Council denied
claimant’s request to review. AR 1-4. The ALJ’s decision, thus, became the final
decision of the Commissioner. AR 1; 20 C.F.R. § 404.981.
Claimant filed a complaint in this Court on October 1, 2015, seeking review of
the ALJ’s decision. Doc. 2. With the consent of the parties, the Honorable Linda R.
Reade transferred this case to a United States magistrate judge for final disposition and
entry of judgment. The parties have briefed the issues, and on July 5, 2016, the matter
was deemed ready for decision. Doc. 20.
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
A disability is defined 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), 1382c(a)(3)(A); 20
C.F.R. § 404.1505. An individual has a disability when, due to his physical or mental
impairments, 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 significant numbers either in the region where such individual
lives or in several regions of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
If the claimant is able to do work which exists in the national economy but is unemployed
because of inability to get work, lack of opportunities in the local area, economic
conditions, employer hiring practices, or other factors, the ALJ will still find the claimant
not disabled. 20 C.F.R. § 404.1566(c)(1)-(8).
To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows the five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 404.1520; see Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir.
2007). First, the Commissioner will consider a claimant’s work activity. If the claimant
is engaged in substantial gainful activity (SGA), then the claimant is not disabled. 20
C.F.R. § 404.1520(a)(4)(i). “Substantial” work activity involves physical or mental
activities. 20 C.F.R. § 404.1572(a). “Gainful” activity is work done for pay or profit,
even if the claimant does not ultimately receive pay or profit. 20 C.F.R. § 404.1572(b).
Second, if the claimant is not engaged in SGA, then the Commissioner looks to
the severity of the claimant’s physical and mental impairments. If the impairments are
not severe, then the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(ii). An
impairment is not severe if “it does not significantly limit your physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1521(a); see also 20 C.F.R. § 404.1520(c);
Kirby, 500 F.3d at 707.
The ability to do basic work activities is defined as having “the abilities and
aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). These abilities and
aptitudes include: “(1) [p]hysical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) [c]apacities for seeing, hearing,
and speaking; (3) [u]nderstanding, carrying out, and remembering simple instructions;
(4) [u]se of judgment; (5) [r]esponding appropriately to supervision, co-workers, and
usual work situations; and (6) [d]ealing with changes in a routine work setting.” 20
C.F.R. § 404.1521(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
Third, if the claimant has a severe impairment, then the Commissioner will
determine the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled regardless of age, education, and work experience. 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d); see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) and the demands of her past relevant work.
If the claimant can still do her past relevant work, then she is considered not disabled.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4). Past relevant work is any work the
claimant has done within the past fifteen years of her application that was SGA and lasted
long enough for the claimant to learn how to do it. 20 C.F.R. § 404.1560(b)(1). “RFC
is a medical question defined wholly in terms of the claimant’s physical ability to perform
exertional tasks or, in other words, what the claimant can still do despite his or her
physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003)
(internal quotation omitted); see 20 C.F.R. § 404.1545(a)(1). The RFC is based on all
relevant medical and other evidence. 20 C.F.R. § 404.1545(a)(3). The claimant is
responsible for providing the evidence the Commissioner will use to determine the RFC.
Id. If a claimant retains enough RFC to perform past relevant work, then the claimant is
not disabled. 20 C.F.R. § 404.1520(a)(4)(iv).
Fifth, if the claimant’s RFC, as determined in Step Four, will not allow the
claimant to perform past relevant work, then the burden shifts to the Commissioner to
show there is other work the claimant can do given the claimant’s RFC, age, education,
and work experience. 20 C.F.R. §§ 404.1512(f), 404.1520(a)(4)(v). The Commissioner
must show not only that the claimant’s RFC will allow him or her to make the adjustment
to other work, but also that other work exists in significant numbers in the national
economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §
404.1520(a)(4)(v). If the claimant can make the adjustment, then the Commissioner will
find the claimant not disabled. 20 C.F.R. § 404.1520(a)(4)(v). At Step Five, the
Commissioner has the responsibility of developing the claimant’s complete medical
history before making a determination about the existence of a disability. 20 C.F.R. §
404.1545(a)(3). The burden of persuasion to prove disability remains on the claimant.
Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
THE ALJ’S FINDINGS
The ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social
Security Act through March 31, 2017.
2. The claimant has not engaged in substantial gainful activity since May
4, 2012, the alleged onset date (20 C.F.R. § 404.1571 et seq.).
3. The claimant has the following severe impairments: chronic fatigue
syndrome; fibromyalgia; migraine headaches; depressive disorder; an
anxiety disorder; and a cognitive disorder, not otherwise specified (20
C.F.R. § 404.1520(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform sedentary work
as defined in 20 § C.F.R. 404.1567(a) such that she is limited to lifting
and carrying up to ten pounds occasionally and five pounds frequently. She
could stand or walk two hours a day, and sit for six to eight hours a day.
She could only occasionally climb, balance, stoop, kneel, crouch, or crawl.
She should have no more than occasional exposure to extreme heat, have
no exposure to hazardous [sic], such as working around heights or moving
machinery, and should never climb ladders, ropes, or scaffolds. She would
be limited to tasks that could be learned in thirty days or less involving no
more than simple, work-related decisions, with only occasional workplace
6. The claimant is unable to perform any past relevant work (20 C.F.R. §
7. The claimant was born on June 15, 1980, and was 31 years old, which is
defined as a younger individual age 18-44, on the alleged disability onset
date (20 C.F.R. § 404.1563).
8. The claimant has at least a high school education and is able to communicate
in English (20 C.F.R. § 404.1564).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P,
10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 C.F.R. §§ 404.1569
11. The claimant has not been under a disability, as defined in the Social
Security Act, from May 4, 2012, through the date of this decision (20
C.F.R. § 404.1520(g)).
The parties filed a joint statement of material facts (Doc. 11), which the Court
incorporates by reference. All of claimant’s arguments before the Court relate to her
Chronic Fatigue Syndrome (CFS).
Thus, the Court briefly summarizes claimant’s
treatment history and her testimony concerning her CFS below.
Claimant was treated on several occasions, by various medical professionals, both
before and after her alleged disability-onset-date of May 4, 2012.
Claimant saw her family physician, Dr. Daniel Vanden Bosch, for a variety of
reasons spanning from 2011 to 2012. Exhibit 3F. Dr. Vanden Bosch diagnosed claimant
with depression. Doc. 11, at 5.
Claimant was treated by Dr. Arun Movva, from 2009 to 2012. Exhibit 4F. Dr.
Movva’s last finding, dated August, 1, 2012, stated that claimant is a “32 year old female
with central adrenal insufficiency diagnosed in 3/09. MRI of the pituitary gland on 5/5/09
revealed a partially empty sella . . . . She continues to deal with fatigue, memory loss
and dizziness” and “I frankly cannot think of any specific endocrine disorder that can
explain her symptoms . . . . It would not be unreasonable to obtain evaluation at a tertiary
care center like Mayo clinic or UIHC. I will leave the decision to her PCP [primary care
physician].” AR 444-46. As of this date, Dr. Movva’s clinic note listed claimant’s active
problems as: Chronic Fatigue Syndrome; Chronic migraine without aura, without
mention of intractabl[e]; Hypogonadism; Malaise And Fatigue Nec; Organic
Hypersomnia Idiopathic; and Secondary Adrenal Insufficiency. AR 444.
Claimant then saw Dr. Trisha Sheeley, an internal medicine doctor. Exhibit 3F.
A radiology report signed by Dr. Sheeley dated July 2, 2013, found claimant’s gastric
emptying time was within normal limits. AR 374. On June 26, 2012, Dr. Sheeley’s
clinic note stated that claimant’s “symptoms are consistent with chronic fatigue syndrome
especially if she truly had a positive EBV after her diagnosis of mono. Unfortunately
there is no clinic here that specializes in this. Will consider referral to Mayo Clinic if
needed. I have ordered several labs to be done.” AR 367. Several of Dr. Sheeley’s
clinic notes state that claimant has “Chronic Fatigue Syndrome - diagnosis per
Dr. Struthers (will see rheumatologist soon); developed after episode of mononucleosis.”
AR 359, 363, 365.
On July 9, 2012, rheumatologist Dr. Alan Braun saw claimant. Exhibit 2F. The
clinic note from that visit, described claimant’s self-described symptoms as well as her
recent medical evaluation history. Dr. Braun wrote:
Recent evaluation has included, in July of this year, a gastric emptying
study that was normal, in June of this year, she had a cortisol stimulation
test as well as a T4, B12, folate, urine porpyrins, heavy metal screen, and
methylmalonic acid testing; all of which were normal. FSH and LH were
normal as were CRP, electrolytes, ACTH, and CBC. In May of this year,
she had an EGD with biopsies that showed gastritis as well as a complete
metabolic panel and urinalysis that were normal. She had screening for
celiac disease in May of 2009 that was normal . . . . She has been told in
the past that she has Epstein-Barr virus infection. This was in 2000. She
was told that she might have Lyme disease in 2001 on the basis of a positive
Lyme serology . . . . More recently Lyme serologies have been normal.
Other treatment has included “every antidepressant known to man.” These
have included among others, Effexor, Villbryd, Lexapro, Paxil, Seroquel,
Zoloft, Wellbutrin, Celexa, Abilify, Cymbalta, and Savella. She has been
on stimulants including Adderall, Ritalin, Provigil, and Nuvigil. She has
been on hypnotics including Ambien, Lunesta, and Xyrem . . . . None of
these treatments helped much except for the stimulants, which gave some
AR 341-42. Dr. Braun’s clinic note continued with his “impressions” as follows:
1. [Claimant] meets the criteria for chronic fatigue syndrome
2. She also has fibromyalgia but I believe that to be part of the CFS
3. She has a history of “empty sella syndrome[.]” It isn’t clear what extent
of evaluation she has had for that . . . .
6. There is no other evidence of rheumatic disease including nothing to
suggest a diagnosis of Lyme disease.
AR 343. Dr. Braun’s same clinic note suggested evaluating claimant for “neutrally
mediated hypotension with orthostatic BPs and maybe a tilt table test and/or
EMG/NCV.” AR 343. On July 23, 2012, a tilt test was conducted. AR 573-74, 636.
The results were described as “[p]ositive tilt table test with mixed cardioinhibitory and
vasodepressor response.” AR 574.
On September 12, 2012, claimant saw Dr. Robert Struthers for a recheck. Exhibit
7F. Claimant complained of “headaches and idiopathic hypersomnolence.” AR 559.
Dr. Struthers’ clinic note from that visit stated that claimant was weaned off of Adderall
as it made her headaches more severe, and prescribed her Topamax again. AR 559-61.
Overall, Dr. Struthers diagnosed claimant with migraine headaches and “idiopathic
organic hypersomnia with long sleep time.” AR 561.
Claimant also underwent a psychological evaluation by state consultant, Dr.
Harlan Stientjes, in September of 2012. See AR 564-67. Dr. Stientjes found claimant
to be: responsive, cooperative, could acceptably read, recalled the calendar date
correctly, made five correct mathematical calculations in a sequence, capable of
managing finances independently, and possessing an average general ability
presumptively. AR 565-66. Overall, Dr. Stientjes found that claimant’s “[p]rospects
of return to gainful employment are weak despite some residual capacity.” AR 566.
On November 6, 2012, Neurologist, Dr. E. Torage Shivapour, diagnosed claimant
with CFS and fibromyalgia with “diffuse musculoskeletal pain/tenderness and chronic
sleep disorder.” AR 594; Doc. 11, at 7. He advised claimant to take 50 mg of
Trazodone as a sleep aid and pursue physical therapy. Id.
On November 29, 2012, Dr. Sheeley wrote in her after visit summary that she
will “continue to manage [claimant’s CFS] conservatively.” AR 580. Also, Dr. Sheeley
noted that claimant “has been to multiple specialist [sic]. All other evaluation has been
On December 18, 2012, at the request of Dr. Shivapour, claimant saw Dr. Joe
Barrash for a neuropsychology consultation. AR 595-98. The clinic notes from the
consultation state that claimant had intact comprehension, unremarkable thought
processes, poor insight, depressed mood, intact judgment, and suboptimal effort during
On August 1, 2013, claimant saw Dr. Amal A. Shibil-Rahhal for evaluation of her
adrenal function and empty sella syndrome. AR 611. Dr. Shibil-Rahhal’s impression
[Claimant] has undergone an extensive evaluation without any clear
explanation for her symptoms. A couple of years ago, she was noted to
have an empty sella an MRI [sic] but she clearly does not have
hypopituitarism. The empty sella syndrome is a pure radiologic diagnosis
simply indicating that the pituitary tissue is thin enough not to be clearly
seen on MRI. It is typically not associated with pituitary dysfunction. No
additional imaging for her pituitary is recommended. Concerning her
adrenal function, there was no evidence of adrenal insufficiency. I obtained
a random cortisol at around 4 PM today and it was normal at 15.4. In
addition, the Cortrosyn stimulation test that she had done last summer was
completely normal. Unfortunately, I do not have a clear explanation for
the patient’s symptoms, and there is no evidence of a hormone disorder to
explain her symptoms. She may be interested in considering behavioral
therapy to help her cope with her symptoms . . . . I will not schedule a
followup appointment for Ms. Kasak to this clinic but would be happy to
see her again should the need arise.
AR 613. Claimant also saw other medical professionals like Dr. Steven Mindrup (Exhibit
7F), psychologist Paul Sundell (Exhibit 20F), and Dr. William Talman (Exhibit 14F).
On February 25, 2014, Dr. Sheeley completed a Chronic Fatigue Syndrome
Medical Source Statement. See AR 656-59. Dr. Sheeley wrote that claimant was
diagnosed with CFS, idiopathic hypersomnia, syncope, empty sella syndrome, and
chronic migraine, and that these impairments have lasted or were expected to last for at
least twelve months. AR 656. Dr. Sheeley also wrote that claimant has the following
CFS symptoms: unrefreshing sleep, muscle pain, self-reported memory/concentration
impairment, headaches, multiple joint pain without swelling, and post-exertional malaise
exceeding 24 hours. AR 657. Furthermore, Dr. Sheeley wrote that claimant cannot
handle a low-stress job, will be off-task 25% or more of the time, is limited in the weight
she can lift, is limited in the amount of standing/walking/lifting that she can do. In
response to the question whether the claimant would need a job where she can shift at
will from sitting/standing, Dr. Sheeley checked the “yes” box and also wrote “if able to
work at all.” AR 658. In response to the question whether the claimant would need to
take unscheduled breaks, Dr. Sheeley checked the “yes” box and again wrote “if able to
work at all.” AR 658.
Claimant’s testimony1 at hearing
At the hearing, claimant testified that her mother had moved into her home to
“help” her with “[h]ousehold chores, taking care of the kids, getting them to and from
school on time, and just moral support.” AR 87. She also testified that her disability
affects her driving ability and she had “two small accidents because I wasn’t able to judge
distance and the lights and the sounds and just concentrating.” AR 88. She testified her
doctor told her to limit her driving “only to when [she] was feeling very clear-headed.”
AR 88. She experienced fatigue after her first son was born. AR 89. She ran a daycare,
but stopped in May of 2012 because “[i]t was simply too hard to care for the children
Claimant’s mother, Connie Miller, provided a third-party testimony, although not at the
hearing. The ALJ discredited her report by explaining that she is an interested witness and a
non-medically trained individual unable to make accurate observations about frequencies, types,
and degrees of medical signs. AR 72.
and concentrate on everything and I was very ill with stomach problems and exhausted
all the time.” AR 89. She previously worked as an accountant at Hy-Vee. AR 90. She
testified that her symptoms currently include: “[e]xhaustion, frequent headaches, and
migraines, dizziness, memory problems, several stomach problems that require me to
run to the bathroom frequently, and just an all over pain and sore and just not feeling
well but more than that [inaudible].”
Furthermore, twice a week, she
experienced severe migraine headaches where she needs to lie down for six to eight hours
on such occasions. AR 100.
THE SUBSTANTIAL EVIDENCE STANDARD
The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
“Substantial evidence is less than a preponderance, but enough that a reasonable mind
might accept as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The Eighth
Circuit Court of Appeals explains the standard as “something less than the weight of the
evidence and [that] allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the [Commissioner] may decide to grant
or deny benefits without being subject to reversal on appeal.” Culbertson v. Shalala, 30
F.3d 934, 939 (8th Cir. 1994) (internal quotation omitted).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but we do not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (internal citation
omitted). The court considers both evidence which supports the Commissioner’s decision
and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir.
The court must “search the record for evidence contradicting the
[Commissioner’s] decision and give that evidence appropriate weight when determining
whether the overall evidence in support is substantial.” Baldwin v. Barnhart, 349 F.3d
549, 555 (8th Cir. 2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (internal citation omitted) (“[A]n administrative decision is not subject to
reversal simply because some evidence may support the opposite conclusion.”).
Claimant makes three arguments in her brief. She argues that: “(1) ALJ erred in
failing to consider SSR 14-1p and SSR 99-2p in evaluating Ms. Kasak’s chronic fatigue
syndrome; (2) ALJ erred in failing to consider whether Ms. Kasak’s CFS medically
equaled the requirements of Listing 14.06B; and (3) ALJ erroneously discounted Ms.
Kasak’s chronic fatigue symptoms and the opinions of her treating doctors, for the
primary reason that they were not fully supported by objective medical evidence.” Doc.
16. The Court addresses these arguments below.
A. Claimant Argues the ALJ Erred In Failing To Consider SSR 14-1p and SSR 992p In Evaluating Chronic Fatigue Syndrome
The Court here must determine (1) which ruling(s) apply to the ALJ’s decision,
and (2) whether the ALJ considered the appropriate ruling(s).
SSA rulings “have neither the force nor effect of law or Congressionally
promulgated regulations.” State of Minn. v. Apfel, 151 F.3d 742, 748 (8th Cir. 1998)
(internal quotation and citation omitted). Yet, “a court generally should defer to an
agency’s ruling . . . .” Ingram v. Barnhart, 303 F.3d 890, 894 (8th Cir. 2002) (citing
State of Minn., 151 F.3d at 748).
1. Which ruling(s) apply to the ALJ’s decision.
On the matter of which ruling(s) apply, claimant argues that both SSR 99-2p and
SSR 14-1p apply. Doc. 16. Claimant argues that “[a]t the time of the ALJ decision, the
relevant framework for evaluating CFS cases was SSR 99-2p. Shortly after the ALJ
made her decision, and prior to the Appeals Council appeal, Social Security issued SSR
14-1p, which supersedes SSR 99-2p.” Doc. 16, at 6. Claimant also states that despite
asking the Appeals Council to consider both rulings, neither the ALJ’s decision nor the
Appeals Council decisions “mentions either of these two Rulings.”
Commissioner’s brief fails to comment on this specific argument.
Commissioner merely paraphrases claimant’s argument above.
Doc. 19, at 4.
claimant’s reply brief, she states that the “Commissioner concedes that neither the ALJ
nor the Appeals Council even mentioned these Rulings.” Doc. 21, at 3. The Court finds
this is an overstatement as the Commissioner omission does not necessarily constitute a
The Court disagrees with the claimant’s characterization of when which ruling
applied. Upon review, SSR 14-1p appears to be the relevant ruling for the ALJ’s
decision. The ALJ hearing was held on February 13, 2014. The ALJ issued her decision
on April 25, 2014. According to the language of SSR14-1p itself, “[t]his SSR is effective
on April 3, 2014.” SSR 14-1p, 2014 WL 1371245 at *9 (Apr. 3, 2014) [hereinafter SSR
14-1p]. Thus, SSR 14-1p was effective twenty-two days before the ALJ issued her
decision. SSR 14-1p also states that it “rescinds and replaces” SSR 99-2p. Id. at *1.
Therefore SSR 14-1p,2 and not SSR 99-2p, is the appropriate ruling that the ALJ should
have considered to evaluate claimant’s CFS.
2. Whether the ALJ considered SSR 14-1p.
Moving on to the second issue, the Court now examines if the ALJ considered
SSR 14-1p in her analysis.
Claimant argues that under SSR 14-1p, “objective medical findings” sufficient to
establish a medically determinable impairment (MDI) includes a positive tilt test showing
neutrally medicated hypotension and an elevated antibody titer to Epstein-Barr virus.
Doc. 16, at 6. Claimant alleges that the ALJ erred from Step Three through Step Five
in her evaluation as she failed to apply SSR 14-1p. Id., at 7. Specifically, the ALJ
The requirements of evaluating CFS were substantially altered from SSR 99-2p to the newly
effective SSR 14-1p. See Wellenstein v. Colvin, C-14-4043-MWB, 2015 WL 5734438, at *10
(N.D. Iowa Sept. 30, 2015) (“The ruling issues in 2014, SSR 14-1p, substantially changed the
way the agency determined CFS, putting the initial burden on whether a medical source has
diagnosed CFS.”). But see Mandler v. Colvin, No. 2:13-cv-01636-GMN-GWF, 2015 WL
1443136, at *22 n.1 (D. Nev. Mar. 30, 2015) (“SSR 14-1p is substantially similar to SSR 992p.”).
allegedly erred at Step Three by failing to consider Listing 14.06B as SSR 14-1p
allegedly3 instructs. Id. And claimant alleges the ALJ erred at Step Four and Step Five
by “relying entirely on the lack of objective medical findings to discount both the
claimant’s symptoms and the treating doctor’s opinion.” Id.
Contrarily, the Commissioner argues that claimant’s argument is “not an assertion
of error,” rather just a statement of facts. Doc. 19, at 5. The Commissioner also alleges
that claimant confuses the rules “for how the ALJ should accept the diagnosis of CFS,
with the rules for determining the functional impact of these diagnoses on a claimant’s
ability to perform work functions,” and adds that claimant fails to prove her disabling
functional restrictions by merely relying on her own subjective statements. Doc. 19, at
5-6.4 Also, the Commissioner points out that here, unlike in the cases cited by claimant,
there is no allegation of error at Step Two. See e.g., Wellenstein v. Colvin, C-14-4043MWB, 2015 WL 5734438, at *8-12 (N.D. Iowa Sept. 30, 2015) (finding at Step Two,
the ALJ erred to fully develop the record for CFS); Jockish v. Colvin, 5:15-CV-05011KES, 2016 WL 1181680, at *5-6 (D. S.D. Mar. 25, 2016) (finding ALJ erred at Step
Two to consider CFS).5 Lastly, the Commissioner concludes that the ALJ properly
examined the record and found that the treatment notes did not support Dr. Sheeley’s
The language of Listing 14.06B reads that “we will compare the specific findings in each case
to any pertinent listing (for example, listing 14.06B in the listing for repeated manifestations of
undifferentiated or mixed connective tissue disease) . . .” 20 C.F.R. Pt. 404, Subpt. P, App. 1
§ 14.06B. The Court discusses this listing in the next section.
In claimant’s reply brief, she argues that the Commissioner erroneously relies on SSR 82-58,
which is no longer in effect, and that the Commissioner’s summary of claimant’s burden of proof
is contrary to Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984).
Claimant disputes this as well. See Doc. 21.
opinion or claimant’s testimony regarding disabling functional restrictions from
claimant’s severe CFS. Doc. 19, at 7.
Claimant submitted additional evidence on appeal. Yet, as the Appeals Council
properly stated, the additional evidence consisted of medical reports dated November 25,
2014, to April 15, 2015, and as such “[t]his new information is about a later time.
Therefore, it does not affect the decision about whether you were disabled beginning on
or before April 25, 2014 [date of ALJ’s decision]. If you want us to consider whether
you were disabled after April 25, 2014, you need to apply again.” AR 2. Claimant also
submitted a representative brief (Exhibit 16E) to the Appeals Council. AR 323-28. No
additional evidence is at issue here. Thus, the record before the ALJ is the same record
that the Court reviews.
The ALJ’s decision was nothing if not thorough. Seven pages in the ALJ’s
decision are solely dedicated to reciting the claimant’s medical history. See AR 64-70.
The recitation of the non-medical evidence is also very thorough.
See AR 71-72.
Claimant takes issue with the ALJ’s decision for failing to cite or reference SSR 14-1p.
See AR 59-75. A citation or explicit reference to SSR 14-1p is, indeed, absent.
Yet, the Court finds that the ALJ’s evaluation of the evidence on the record of
claimant’s CFS corresponded with the instructions set forth in SSR 14-1p. Thus, the
ALJ’s failure to directly cite SSR 14-1p in her opinion is a mere deficiency in her opinionwriting. See Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005) (“While a
deficiency in opinion-writing is not a sufficient reason to set aside an ALJ’s finding where
the deficiency [has] no practical effect on the outcome of the case, inaccuracies,
incomplete analyses, and unresolved conflicts of evidence can serve as a basis for
remand.”) (internal quotation marks and citations omitted); see also Lewis v. Colvin, 973
F. Supp. 2d 985, 1008 (E.D. Mo. 2013) (“The Eighth Circuit has held an arguable
deficiency in opinion-writing technique does not require us to set aside an administrative
finding when the deficiency had no bearing on the outcome.”) (quoting Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992)) (internal quotation marks omitted).
The Court now turns to SSR 14-1p, which is titled “Evaluating Claims Involving
Chronic Fatigue Syndrome (CFS).” SSR 14-1p reads that “CFS may be a disabling
impairment.” Id. at *2 (emphasis added). The ruling states that “[w]e will find that a
person has an MDI of CFS if a licensed physician diagnosed CFS, and this diagnosis is
not inconsistent with the other evidence in the person’s case record . . . . The evidence
must document that the physician reviewed the person’s medical history and conducted a
physical exam.” Id. at *4. Furthermore, the ruling cites to the Center for Disease
Control and Prevention’s definition of CFS, which is “a syndrome that causes prolonged
fatigue lasting 6 months or more, resulting in a substantial reduction in previous levels
of occupational, educational, social, or personal activities.” Id. at *2. The ruling also
states that the Social Security Administration (SSA) will document CFS generally with
“longitudinal evidence.” Id. at *5. Furthermore, the ruling explains that co-occurring
conditions of CFS may include fibromyalgia, myofascial pain syndrome, migraines, and
other enumerated conditions. Id. at *3. The ruling outlines the five sequential evaluation
steps the SSA must consider to determine whether CFS is a MDI, including symptoms
that should be considered, and whether CFS is disabling alone or in combination with
claimant’s other MDIs. Id. at *8-9.
Consistent with the instructions in SSR 14-1p at *8-9, the ALJ found the following
at each of the five steps. At Step One, the ALJ found that claimant was not engaged in
substantial gainful activity. AR 61. At Step Two, the ALJ found claimant’s CFS was a
severe MDI—consistent with the CFS diagnoses by doctors Sheeley (AR 361-67), Braun
(AR 341-343), and Shivapour (AR 593-95). AR 61-73. The Court will discuss Steps
Three through Five in subsequent sections.
But briefly, at Step Three, the ALJ
determined that that none of the listings were met by any impairment or the combination
of all impairments. AR 62-63. At Step Four, the ALJ found that claimant was precluded
from performing past work but was able to perform sedentary work with the restrictions
described above (supra Section III., 5). AR 63-73. And at Step Five, the ALJ found
that there were jobs available in significant numbers in the national economy that claimant
could perform. AR 73-74.
This disability decision corresponded with the instructions set out in the ruling.
Here the ALJ discussed all of the evidence regarding claimant’s CFS and relied on the
medical diagnosis of CFS on the record to determine that claimant’s CFS was a severe
MDI at Step Two. The quality of the ALJ’s decision here differs from many of the
decisions dealing with CFS that have been remanded by the courts. See Jockish, 2016
WL 1181680, at *5-6 (remanded for ALJ’s failure to consider CFS as a separate
impairment at Step Two when the record reflected several physicians diagnosed CFS);
Reynolds v. Colvin, No.8:14CV65, 2015 WL 134254, at *3-5 (D. Neb. Jan. 9, 2015)
(twice remanded case—once by Appeals Council and once by court—for ALJ’s failure
to fully develop the record on the alleged impairments of fibromyalgia and CFS);
Wellenstein, 2015 WL 5734438, at *9-14 (finding the ALJ failed to develop the record
and failed to even consider the claim of CFS, thus the case was remanded back for the
ALJ to develop the record on CFS and evaluate the CFS claim within the framework of
SSR 14-1p); Shontos v. Barnhart, 328 F.3d 418, 424-25 (8th Cir. 2003) (remanded as
ALJ made improper inferences from the medical record and relied on non-treating
sources instead of on treating sources, thus not only did the ALJ did not consider the
appropriate listings but acted contrarily to them). Thus, the ALJ’s decision lacks the
major deficiencies that characterize the cases listed above. See Bradley v. Astrue, 528
F.3d 1113, 1115 (8th Cir. 2008) (“We will not disturb the denial of benefits so long as
the ALJ’s decision falls within the available zone of choice . . . . An ALJ’s decision is
not outside the zone of choice simply because we might have reached a different
conclusion had we been the initial finder of fact.”) (internal quotation marks and citations
Also, the ALJ included language in her decision that reflects an understanding and
acknowledgment of the CFS specific ruling. In the decision, the ALJ writes that “[t]he
claimant alleged disability due to chronic fatigue syndrome, headaches, and fibromyalgia
symptoms, with the latter two thought to be related to the chronic fatigue.” Interestingly,
SSR 14-1p states that headaches are a symptom of CFS and fibromyalgia is a co-occurring
condition of CFS.6 SSR 14-1p, at *2-3. Also, pursuant to SSR 14-1p’s mandate—“in
cases in which a person with CFS has psychological manifestations related to CFS, we
must consider whether the person’s impairment meets or equals the severity of any
impairment in the mental disorders listings”—the ALJ explicitly examined Listings
12.02, 12.04, and 12.06 for mental impairments. AR 62.
Lastly, “[t]o show an error was not harmless, [claimant] must provide some
indication that the ALJ would have decided differently if the error had not occurred.”
Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (citing Van Vickle v. Astrue, 539 F.3d
825, 830 (8th Cir. 2008)). Claimant alleges that the ALJ’s failures—to consider Listing
14.06B and properly weigh claimant’s testimony and Dr. Sheeley’s opinion—stem from
the ALJ’s failure to consider SSR 14-1p. As will be discussed below, the Court rejects
these arguments. The ALJ’s findings were within her zone of choice and overall, the
Court finds that substantial evidence on the record supports her decision to deny DIB.
Thus, claimant fails to prove any indication that the ALJ would have granted her benefits
absent the alleged failing to consider the ruling.
As does its predecessor. See SSR 99-2p, 1999 WL 271569, at *3 n.3 (Apr. 30, 1999).
B. Claimant Argues that the ALJ Erred in Failing to Consider Listing 14.06B
There is no specific listing for CFS. Thus, claimant argues that the ALJ failed to
consider, at Step Three, whether her severe impairment of CFS, alone or in combination
with her other severe impairments, met or medically equaled Listing 14.06B. Docs. 16
& 21. Claimant argues that the ALJ’s failure to consider this listing requires reversal.
Doc. 16, at 10.
Listing 14.06B, defines undifferentiated and mixed connective tissue disease as:
B. Repeated manifestations of undifferentiated or mixed connective tissue
disease,7 with at least two of the constitutional symptoms or signs (severe
fatigue, fever, malaise, or involuntary weight loss) and one of the following
at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to
deficiencies in concentration, persistence, or pace.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 14.06B. Severe fatigue is defined as “a frequent
sense of exhaustion that results in significantly reduced physical activity or mental
function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 14.00(C)(2). And malaise is defined
as “frequent feelings of illness, bodily discomfort, or lack of well-being that result in
significantly reduced physical activity or mental function.” Id.
This listing “includes syndromes with clinical and immunologic features of several autoimmune
disorders, but which do not satisfy the criteria for any of the specific disorders described. For
example, you may have clinical features of SLE and systemic vasculitis, and the serologic (blood
test) findings of rheumatoid arthritis . . . . Undifferentiated connective tissue disease is diagnosed
when clinical features and serologic (blood test) findings, such as rheumatoid factor or
antinuclear antibody (consistent with an autoimmune disorder) are present but do not satisfy the
criteria for a specific disease. Mixed connective tissue disease (MCTD) is diagnosed when
clinical features and serologic findings of two or more autoimmune diseases overlap.” 20 C.F.R.
Pt. 404, Subpt. P, App. 1 § 14.00 (D)(5)(a-b).
In her brief, claimant admits that she “does not have a connective tissue disease.”
Doc. 16, at 8. Claimant argues “[h]owever, she has severe debilitating fatigue—a
requirement of the listing.” Id. Claimant further argues that “[a]s a result [of her
debilitating fatigue], her daily activities, social functioning and concentration, persistence
and pace are markedly impaired, as described in her testimony, the medical records, and
Dr. Sheeley’s written opinion.” Doc. 16, at 8. Also, claimant cites Brown v. Colvin for
the proposition that it is the ALJ’s duty to determine if any listings are met in the first
instance. Doc. 21, at 11 (citing generally Brown v. Colvin, No. 15-3001, 2016 WL
3361472, (8th Cir. 2016)).
The Commissioner argues that claimant fails to demonstrate that she has at least
two of the constitutional symptoms or signs (involuntary weight loss, fever, malaise, or
severe fatigue) as she only claims that she has debilitating fatigue. Doc. 19, at 8-9. And
the Commissioner argues, even if claimant does have two of the symptoms/signs, she
fails part two of Listing 14.06B because she failed to show that one of her symptoms/signs
is at a marked level where it (1) limits her daily-living activities, (2) limits her social
functioning, or (3) limits her ability to timely complete task due to problems with pace,
persistence, or concentration. Doc. 19, at 9.
A claimant must show that her condition equals or meets all of the criteria of a
listing. See Deckard v. Apfel, 213 F.3d 996, 997 (8th Cir. 2000) (citing Marciniak v.
Shalala, 49 F.3d 1350, 1353 (8th Cir. 1995)). See also Sullivan v. Zebley, 493 U.S.
521, 530 (1990) (“For a claimant to show that his [or her] impairment matches a listing,
it must meet all of the specified medical criteria.”) (emphasis in original); Johnson v.
Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004) (to meet burden of proof, claimant must
present medical findings equal in severity to all criteria of listing). Overall, the listings
“describe limited circumstances in which a claimant’s impairment is so severe that the
individual is categorically deemed disabled without further inquiry.” Douglas v. Comm'r
of Soc. Sec., No. 6:11-CV-00043, 2012 WL 5929322, at *3 (W.D. Va. Nov. 7, 2012),
report and recommendation adopted, No. 6:11-CV-00043, 2012 WL 5941469 (W.D.
Va. Nov. 27, 2012) (nonbinding).
Ruling 14-1p instructs ALJs to “compare the specific findings in each case to any
pertinent listing (for example, listing 14.06B in the listing for repeated manifestations of
undifferentiated or mixed connective tissue disease) to determine whether medical
equivalence may exist.” SSR 14-1p, at *8. Claimant states that she does not have a
connective tissue disease (neither undifferentiated nor mixed). Thus, the Court struggles
to understand how the claimant views this as a likely winning argument for reversal.
Here, claimant must show in part one that the medical evidence shows that she has at
least two of the following: severe fatigue, malaise, fever, or weight loss. Then in part
two, claimant must show that one of these symptoms/signs is so severe that it limits (1)
her activities of daily life, (2) limits her social functioning or (3) limits her ability to
timely complete tasks due to issues in concentration, persistence, or pace.
While it is doubtful that the evidence on the record supports a finding of two
symptoms/signs, the record does not support a finding that any one of these
symptoms/signs is severe enough to result in a marked level of limitation in one of the
three general areas of limitations. First, the record does not support a finding that
claimant has at least two of: involuntary weight loss, fever, malaise, or severe fatigue.
Although claimant did experience weight fluctuations, these were within a normal range
according to various medical professionals on the record. AR 366 (dated June 26, 2012,
weight is 110 pounds and claimant looks “well developed, well nourished”), AR 623
(dated March 4, 2013, weight was 123 pounds, BMI of 21.8), AR 612 (dated July 31,
2013, claimant’s weight was 111 pounds and she “look[ed] healthy and comfortable”).
There is no record of claimant having a fever. See AR 586 (during flu-like symptoms
claimant did not experience chills or fever).
The medical records reflect sporadic
episodes of claimant having a sore throat, chills and vomiting, wondering if she has CFS,
but no mention of fever. AR 480, 484-86. The issues of severe fatigue and malaise are
a closer call. The regulations define severe fatigue as causing “significantly reduced
physical activity or mental function” and malaise as illness/discomfort causing
“significantly reduced physical activity or mental function.” 20 C.F.R. Pt. 404, Subpt.
P, App. 1 §14.00(C)(2). The ALJ found that despite claimant’s severe impairment of
CFS and her other severe impairments, the claimant only had “mild difficulties in
activities of daily living; moderate difficulties in social functioning; moderate difficulties
with regard to concentration, persistence or pace; and no episodes of decompensation.”
AR 62. Dr. Movva’s treatment note from August of 2012 listed claimant’s active
problems as “malaise and fatigue.” AR 444. Although claimant is diagnosed with a
severe impairment of CFS, the Court notes that “severe” is understood differently than
in Step Two. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 14.00(D)(12) (“Severe means
medical severity as used by the medical community. The term does not have the same
meaning as it does when we use it in connection with a finding at the second step of the
sequential evaluation processes in §§ 404.1520, 416.920, and 416.924.”). Indeed, the
record supports that claimant does not have severe fatigue. See, e.g., AR 487 (claimant
looked tired but seemed alert and awake and was conversant); AR 561 (claimant was
alert); AR 580, 584, 588-89 (claimant treated conservatively); AR 596 (speech was
fluent, well-articulated, non-paraphasic); AR 612 (claimant looked healthy and
comfortable); and AR 616 (alert and cooperative). Similarly, the record also does not
support a finding of malaise. AR 366 (claimant appeared in no acute distress and was
“[o]riented to time, place, and person, well developed, well nourished”); AR 343 (wellnourished and well developed, and in no acute distress). Even if, the record supported
two or more symptoms/signs, it would not support a finding that any of these
symptoms/signs were at a marked level of limitation. For daily living activities, claimant
testified that she got children ready for school, packed their backpacks, ensured they ate
breakfast, did light housework (e.g., filled laundry baskets, put cereal bowls in sink),
tried to do scrapbooking and looked at photos. AR 92-94. Medical records also reflect
that claimant was able to manage finances independently and could read acceptably (AR
Regarding social functioning, claimant was found to be responsive,
cooperative, polite, comprehension intact, conversant. AR 487, 564-67, 596. And for
ability to complete tasks on time, claimant recalled the calendar date correctly, made five
correct mathematical calculations in a sequence, thought processes were unremarkable,
judgment was intact. AR 565-66, 596.
Thus, the record does not support a finding that claimant met the requirement for
Listing 14.06B. See Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011) (internal
citations omitted) (“There is no error when an ALJ fails to explain why an impairment
does not equal one of the listed impairments as long as the overall conclusion is supported
by the record.”); see also Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 722 n.3 (8th
Cir. 2005) (“The fact that the ALJ’s decision does not specifically mention listing
112.05E does not affect our review. ‘Although it is preferable that ALJs address a
specific listing, failure to do so is not reversible error if the record supports the overall
conclusion, as it does in this case.’”) (quoting Pepper ex rel. Gardner v. Barnhart, 342
F.3d 853, 855 (8th Cir. 2003)).
C. Claimant Argues the ALJ Erred in Discounting Claimant’s Testimony on the
Severity of Her Chronic Fatigue Symptoms And Erred in Discrediting Dr.
Claimant alleges the ALJ erred in discounting claimant’s credibility regarding the
severity of her CFS symptoms, and erred in giving Dr. Sheeley’s CFS Medical Source
Statement report little weight.
1. Claimant’s credibility on her subjective complaints
Claimant argues that the ALJ discounting of claimant’s credibility regarding the
severity of her CFS symptoms for lack of objective medical evidence, which claimant
argues is the nature of an illness like CFS, was a reversible error. Doc. 16. Claimant
also argued the ALJ erred because the ALJ failed to discuss all of the Polaski factors.
The Court reviews the ALJ’s credibility determination through an examination of
the Polaski factors and the mandates of SSR 14-1p. Under the Polaski factors, an ALJ
must consider the “claimant’s prior work record, and observations by third parties and
treating and examining physicians relating to such matters as: (1) claimant’s daily
activities; (2) duration, frequency and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5)
functional restrictions.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). In
Lowe, the Eighth Circuit Court of Appeals stated, “[t]he ALJ was not required to discuss
methodically each Polaski consideration, so long as he acknowledged and examined those
considerations before discounting [claimant’s] subjective complaints.” Lowe v. Apfel,
226 F.3d 969, 972 (8th Cir. 2000) (internal citation omitted). If the ALJ gives a good
reason for discrediting a claimant’s credibility, then the court will defer to the ALJ’s
judgment “even if every factor is not discussed in depth.” Dunahoo v. Apfel, 241 F.3d
1033, 1038 (8th Cir. 2001).
The Court also notes that “[a]lthough the ALJ may
disbelieve a claimant’s allegations of pain, credibility determinations must be supported
by substantial evidence.” Jeffery v. Sec’y of Health & Human Servs., 849 F.2d 1129,
1132 (8th Cir. 1988) (internal citation omitted). “Moreover, the ALJ must make express
credibility determinations and set forth the inconsistencies in the record that lead him to
reject the claimant’s complaints.” Id. “Where objective evidence does not fully support
the degree of severity in a claimant’s subjective complaints of pain, the ALJ must consider
all evidence relevant to those complaints.” Holmstrom v. Massanari, 270 F.3d 715, 721
(8th Cir. 2001) (internal citation omitted).
In evaluating a claimant’s subjective
complaints of pain, an ALJ may rely on a combination of his personal observations and
a review of the record to reject such complaints. Lamp v. Astrue, 531 F.3d 629, 632
(8th Cir. 2008). However, the ALJ may not solely rely on his personal observations to
reject such claims. Id. Thus “[s]ubjective complaints can be discounted [by the ALJ],
however, where inconsistencies appear in the record as a whole.” Edwards v. Barnhart,
314 F.3d 964, 966 (8th Cir. 2003) (citing Polaski).
SSR-14-p provides the following guidance on credibility determinations:
IV. How do we evaluate a person’s statements about his or her symptoms
and functional limitations? Generally, we follow a two-step process:
A. First step of the symptom-evaluation process. There must be medical
signs and findings that show the person has an MDI(s) which we could
reasonably expect to produce the fatigue or other symptoms alleged. If we
find that a person has an MDI that we could reasonably expect to produce
the alleged symptoms, the first step of our two-step process for evaluating
symptoms is satisfied.
B. Second step of the symptom-evaluation process. After finding that the
MDI could reasonably be expected to produce the alleged symptoms, we
evaluate the intensity and persistence of the person’s symptoms and
determine the extent to which they limit the person’s capacity for work. If
objective medical evidence does not substantiate the person’s statements
about the intensity, persistence, and functionally limiting effects of
symptoms, we consider all of the evidence in the case record, including the
person’s daily activities; medications or other treatments the person uses,
or has used, to alleviate symptoms; the nature and frequency of the person’s
attempts to obtain medical treatment for symptoms; and statements by other
people about the person’s symptoms. We will make a finding about the
credibility of the person’s statements regarding the effects of his or her
symptoms on functioning. When we need additional information to assess
the credibility of the individual’s statements about symptoms and their
effects, we will make every reasonable effort to obtain available information
that could shed light on the credibility of the person’s statements.
SSR 14-1p, at *7 (emphasis added). The ALJ found claimant’s statements concerning
the severity of her MDIs was “not credible to the extent they are inconsistent with the
above residual functional capacity assessment.” AR 71. First, the ALJ discussed the
inconsistent medical evidence on the record, where several medical professionals’
treatment notes (both physical and neurological evaluations) revealed only normal testing
results and did not support a disability finding. Exhibits 1F, 7F 12F, 14F. Dr. Struthers
noted that claimant’s headaches had improved with medication to only once a week
(Exhibit 15F), which the ALJ found inconsistent with claimant’s testimony at the hearing
of daily headaches. AR 72. The ALJ also found cardiologist’s treatment notes from
April of 2013 (Exhibit 16F) stating that claimant is pursuing a conservative treatment and
“has been managing her symptoms [of dizziness] on her own and has gotten to the point
that she is able to go about her daily functioning” inconsistent with claimant’s hearing
testimony. AR 72, 627 (cardiologist’s note stated that claimant continues to take Adderall
for chronic daytime fatigue, but has stopped taking Florinef and midodrine). See Gowell
v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (finding it appropriate to consider a
conservative medical treatment as a credibility factor). Furthermore, the ALJ noted
claimant’s history of not pursuing additional recommended psychotherapy treatment for
her reactions to chronic stress as recommended by Joe Barrash. AR 72, 598. See AR
615 (Dr. Amal Shibil-Rahhal suggested behavioral therapy as way for claimant to cope
with her symptoms). Here, the ALJ wrote “claimant’s failure to follow treatment advice
tends to suggest she was not experiencing symptoms consistent with those she alleged in
connection with her application, eroding the credibility of those allegations.” AR 72.
Also, the ALJ considered all of claimant’s reported daily activities, and determined that
these were inconsistent with allegations of disabling limitations. AR 72. See AR 92-94.
Lastly, the ALJ also considered the testimony of claimant’s mother. The ALJ
found that her testimony lacked credibility as she was an interested third-party witness
and lacked medical training, and overall her testimony was inconsistent with the weight
of the medical evidence on the record. AR 72. Thus, the ALJ’s credibility determination
properly considered both the Polaski factors as well as the instructions provided by SSR
2. Weight given to Dr. Sheeley’s Chronic Fatigue Syndrome Medical Source
Claimant asserts that the ALJ erred in discrediting the CFS Medical Source
Statement dated February 2014 by Dr. Sheeley, claimant’s treating physician.8 See Docs.
16 & 21. Claimant argues the ALJ erred in rejecting Dr. Sheeley’s report “because the
medical testing that was performed in order to rule out causes other than chronic fatigue
syndrome came back as normal or unremarkable.” Doc. 16, at 19 (emphasis in original).
A treating source is an acceptable medical source who has an ongoing treatment
relationship providing medical treatment or evaluation to the claimant; however, such
relationship may not exist solely to establish claimant’s disability. 20 C.F.R. § 404.1502.
Under agency regulations, an acceptable medical source includes licensed physicians,
either medical or osteopathic doctors.
Id. § 404.1513(a).
An ongoing treatment
relationship is generally established when the medical evidence is consistent that the
claimant has seen “the source with a frequency consistent with accepted medical practice
for the type of treatment and/or evaluation required for your medical condition(s).” Id.
§ 404.1502. Generally, a treating source gets controlling weight. See Goff, 421 F.3d at
The parties stipulated that Dr. Sheeley is claimant’s treating source. Doc. 11, at 8.
790 (internal quotations and citation omitted) (“A treating physician’s opinion is given
controlling weight if it is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence.”). See
20 C.F.R. §404.1527(d)(2). But, a treating source’s opinion does “not automatically
control, since the record must be evaluated as a whole.” Id. (internal citation omitted).
Furthermore, there is a category of opinions, even if authored by treating sources, which
get limited weight; namely, opinions by treating medical professionals stating that an
applicant is “unable to work” or “disabled” do not count as medical opinions. Ellis v.
Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (citing Stormo, 377 F.3d at 806). An ALJ
may give limited weight to a treating source’s opinion if such opinion only provides
conclusory statements or is inconsistent with the substantial evidence on the record.
Chamberlain v. Shalala, 47 F.3d 1489, 1489-94 (8th Cir. 1995). See Vandenboom v.
Barnhart, 421 F.3d 745, 749-50 (8th Cir. 2005) (upholding ALJ’s decision to deny
controlling weight to the treating source’s opinion where such opinion was “based largely
on [claimant’s] subjective complaints with little objective medical support” and relied on
a medical report inconsistent with the whole record); see also Renstrom v. Astrue, 680
F.3d 1057, 1064-65 (8th Cir. 2012) (concluding ALJ’s decision to give treating source
non-controlling weight was reasonable as treating source’s findings were “largely based
on [claimant’s] subjective complaints” and his findings were inconsistent with other
medical experts on the record who found claimant capable of light work).
Under SSR 14-1p, medical opinions about a claimant’s CFS impairment are
weighed as follows:
How do we consider medical opinions about a person’s impairment? We
consider the nature of the treatment relationship between the medical source
and the claimant when we evaluate the source’s medical opinions about a
person’s impairment(s). If we find that a treating source’s medical opinion
regarding the nature and severity of a person’s impairment(s) is well30
supported by medically acceptable clinical and laboratory diagnostic
techniques, and the opinion is not inconsistent with the other substantial
evidence in the case record, we will give it controlling weight. If a medical
source states that a person is “disabled” or “unable to work,” or provides
an opinion on issues such as whether an impairment(s) meets or is
equivalent in severity to the requirements of a listing, a person’s residual
functional capacity (RFC), or the application of vocational factors, we
consider these statements to be opinions on issues reserved to the
Commissioner. We must still consider such opinions in adjudicating a
disability claim; however, we will not give any special significance to such
an opinion because of its source.
SSR 14-1p, at *6 (emphasis added).
Applying the above standards, the Court finds that substantial evidence on the
record as a whole supports the ALJ’s decision to discredit Dr. Sheeley’s report. In the
report, most of Dr. Sheeley’s statements refer to claimant’s likely inability to work, and
thus are classifiable as non-medical opinions, which only deserve limited weight. See
Stormo, 377 F.3d at 806. Determinations of disability are within the sole discretion of
the Commissioner. In the report, Dr. Sheeley opined claimant cannot handle a low-stress
job, will be off-task 25% or more of the time, is limited in the weight she can lift, is
limited in the amount of standing/walking/lifting that she can do. AR 657-58. In
response to the question whether the claimant would need a job where she can shift at
will from sitting/standing, Dr. Sheeley checked the “yes” box and also wrote “if able to
work at all.” AR 658. In response to the question whether the claimant would need to
take unscheduled breaks, Dr. Sheeley checked the “yes” box and again wrote “if able to
work at all.” AR 658. As the Commissioner rightly points out, “unexplained checklist
opinions are of limited value.” Doc. 19, at 19 (citing Wildman v. Astrue, 596 F.3d 959,
964 (8th Cir. 2010)). Dr. Sheeley’s report finding claimant’s CFS likely makes her
unable to work and disabled, however, is not supported by Dr. Sheeley’s overall
treatment notes and findings. In November of 2012, Dr. Sheeley’s treatment notes reflect
that she was recommending only conservative treatment for claimant. AR 580 (“continue
to manage [claimant’s CFS] conservatively . . . . [claimant] has been to multiple specialist
All other evaluation has been negative.”).
Such treatment notes do seem
inconsistent with Dr. Sheeley’s findings that claimant’s CFS is so severe that she cannot
handle even a low-stress job, or will be off task for 25% of the time or more, and likely
will not be able to work at all. See Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999)
(“A treating physician’s opinion is afforded less deference when the medical evidence in
the record as a whole contradicts the opinion itself.”).
Dr. Sheeley’s physical
examinations revealed normal findings. Exhibits 3F (dated June 2012, overall physical
findings were normal). The other medical evidence on the record supports discrediting
Dr. Sheeley’s report. See Exhibit 6F (Dr. Vanden Bosch’s physical examinations also
revealed normal findings); Exhibit 2F (treatment note by Dr. Braun dated July 2012,
states that claimant’s gastric emptying study was normal, cortisol stimulation test was
normal, Lyme serologies were normal, and various other tests were all normal); and AR
613 (in April of 2013, Dr. Shibil-Rahhal found claimant’s adrenal function and cortisol
levels to be normal). Also, the ALJ’s decision states “Dr. Sheeley continually reported
being unable to assess the claimant’s functioning in completing the checklist form, noting
that she needed a disability evaluation. However, there is no indication such evaluation
was performed.” AR 70. Overall, the Court finds that substantial evidence on the record
as a whole supports the ALJ’s decision to discredit Dr. Sheeley’s report.
After a thorough review of the entire record, the Court concludes that the ALJ’s
decision to deny claimant’s application for DIB is supported by substantial evidence on
the record as a whole. Accordingly, the Court affirms the decision of the ALJ. Judgment
shall be entered in favor of the Commissioner and against claimant.
IT IS SO ORDERED this 20th day of March, 2017.
Chief United States Magistrate Judge
Northern District of Iowa
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