Dreesman v. Commissioner of Social Security

Filing 23

MEMORANDUM Opinion and Order. Pursuant to sentence four, this case is reversed and remanded for further proceedings. Signed by Magistrate Judge CJ Williams on 10/28/2016. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
CYNTHIA A. DREESMAN,
Plaintiff,

No. 15-CV-00121-CJW

vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

MEMORANDUM OPINION AND
ORDER

Defendant.
____________________
I.

INTRODUCTION

Plaintiff, Cynthia A. Dreesman (claimant), seeks judicial review of a final decision
of the Commissioner of Social Security (the Commissioner) denying her application for
Social Security disability insurance benefits (DIB) and supplemental security income
(SSI), under Title II and XVI (respectively) of the Social Security Act, 42 U.S.C. §§
405(g), 423, 1383(c)(3). Claimant contends the Administrative Law Judge (ALJ) erred
when she failed to: (1) properly consider claimant’s headaches as a severe impairment in
determining whether claimant was disabled; (2) afford proper weight to opinions by
claimant’s treating doctors; and (3) consider claimant’s work history in assessing
claimant’s credibility. For the reasons that follow, the Commissioner’s decision is
reversed and remanded for further proceedings consistent with this order.

II.

FACTUAL BACKGROUND

Claimant was born in 1965. AR 36.1 She completed high school, and attended
community and technical colleges, completing courses in CNA training, CMA training,
and EMT training. AR 37. She has previously worked as a cashier, security guard,
emergency medical technician, nurse’s aide, shift manager at a fast-food restaurant,
cook’s helper, and production worker. AR 24, 38-42.
Claimant suffers from congenital hydrocephalus (AR 298), which is a condition in
which excess fluid accumulates in the brain. Symptoms include headaches, nausea and
vomiting, double vision, problems with balance, poor coordination, and changes in
cognition. Claimant was treated for this condition by placement of a shunt in 1990, which
apparently drains excess fluid. AR 284. Over time, it has been necessary for doctors to
“revise” or replace the shunt, apparently to adjust the amount of drainage or in response
malfunctions.

Thus, claimant had revisions or replacements in 1997 (AR 284),

November 13, 2012 (AR 288), November 25, 2012 (AR 306-15), January 4, 2013 (AR
362), and February 20, 2013 (AR 463).
Throughout the period from the fall of 2012 to the summer of 2014, claimant
reported suffering from headaches, the presence of which would vary in frequency and
severity. On November 9, 2012, claimant reported to her treating neurologist, Dr. Saul
Wilson, that she had been suffering chronic pain for the past year, stating that she had
headaches when lying in bed, but that they were better when she got up. AR 539. On
November 24, 2012, claimant was admitted to the hospital with a headache, dizziness,
nausea, vomiting and blurred vision. AR 305, 310. She reported the symptoms had
improved immediately after the “revision” of her shunt on November 10, 2012, but the

1

“AR” refers to the administrative record below.

2

symptoms had recently returned. AR 310. For about a week after a shunt revision on
November 25, 2012, claimant reported significant improvement in her headaches. AR
306, 339. By December 28, 2012, claimant was again suffering from headaches that
began in the morning and got worse throughout the day. AR 339. On December 29,
2012, claimant reported to the emergency room with a headache. AR 345-46. Over the
course of the next several days, claimant continued to suffer from a headache as medical
staff adjusted her shunt setting until she improved and was discharged from the hospital.
AR 345-47. She was readmitted to the hospital on January 4, 2013, however, due to an
infection in her shunt, requiring another revision. AR 361-62. On February 1, 2013, at
a follow-up appointment, claimant reported that she had not had a headache since her
discharge and that she was pain free. AR 450. A shunt malfunction required another
shunt revision in February 2013. AR 462-64. By March 8, 2013, claimant was again
reporting headaches. AR 554-55. But, when she saw Dr. Wilson again on May 24,
2013, she was “doing well from the headache standpoint, but continu[ed] to have some
difficulty with concentration and memory.” AR 617. On August 14, 2013, claimant
reported to another doctor that she had a recent increase in dizziness and headaches. AR
649. On August 27, 2013, she reported to Dr. Ryan Arnevik, her primary care physician,
that she was still having headaches, and that they were becoming “slightly more
frequent,” occurring on average once every other day. AR 645. On September 5, 2013,
claimant presented to neurosurgery for worsening headaches and dizziness, indicating
that her baseline headache pain was 6 out of 10, with worse headaches every other day
with pain rated at 9 out of 10. AR 768. Claimant saw Dr. Arnevik regularly throughout
the rest of 2013 and into 2014, with periodic reports of dizzy spells and headaches. AR
700, 705-07, 709, 714, 718, 720, 721, 724. On July 14, 2014, claimant returned to
neurosurgery with headaches. AR 775. She stated that her headaches had been getting

3

progressively worse during the preceding three weeks, rating her pain at 7-8 out of 10.
Id.
III.

PROCEDURAL BACKGROUND

Claimant previously applied for DIB and SSI in 2005 and 2009, but the
Commissioner denied those applications because claimant continued to be gainfully
employed. AR 8. She continued to work part-time as a volunteer EMT for an ambulance
service, pursuant to which she was paid when she responded to a call. AR 8-9, 11. She
filed the instant application for DIB and SSI on February 19, 2013, and February 25,
2013 (respectively). AR 182-84; 200-204. Claimant alleged an onset of disability
beginning November 1, 2012. AR 182. She claimed she was disabled due to a brain
injury resulting in continuing problems, use of a cane/walker for ambulation,
hyperthyroidism, and high cholesterol. AR 220.
The Commissioner denied claimant’s application on July 5, 2013, and upon
reconsideration on September 25, 2013. AR 64, 80. Claimant then requested a hearing
before an ALJ. ALJ Tela Gatewood conducted a video hearing on October 20, 2014 (the
Hearing), and issued a decision denying claimant’s application on August 14, 2015. AR
5-30.2

Claimant sought review by the Appeals Council, which denied review on

September 9, 2015 (AR 1-4), leaving the ALJ’s decision as the final decision of the
Commissioner.

Claimant argues that the ten-month delay between the hearing and decision is “highly significant”
because (1) claimant’s age category changed during this period and (2) the ALJ was criticized in a
newspaper article during this time period for the slowness of her decisions, causing some of her cases to
be reassigned. Doc. 17, at 2 n.1. Claimant argues that the ALJ’s allegedly erroneous decision was the
result of “hastened analysis.” Id. The court finds the delay insignificant to the merits of this dispute.
First, claimant’s age category did not factor into the ALJ’s decision or any issue raised by claimant in
her request for judicial review. Second, claimant’s assertion that the ALJ erred because of hastened
decision-making is pure speculation and is, in any event, irrelevant to whether the ALJ did, in fact, err.

2

4

On November 4, 2015, claimant filed a complaint in this court seeking review of
the Commissioner’s decision. Doc. 4. On February 11, 2016, with the consent of the
parties, United States District Court Chief Judge Linda R. Reade transferred this case to
a United States Magistrate Judge for final disposition and entry of judgment. Doc. 15.
The parties have now briefed the issues, and on June 21, 2016, the matter was deemed
fully submitted and ready for decision. Doc. 22.
IV.

DISABILITY DETERMINATOINS 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 12months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. §
1382c(a)(3)(A), 20 C.F.R. §§ 404.1505(a), 416.905(a). A claimant has a disability when
the claimant 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).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined
in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500 F.3d 705,
707 (8th Cir. 2007). First, the Commissioner will consider a claimant’s work activity.
If the claimant is engaged in substantial gainful activity, then the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
5

activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment is
not severe if it amounts only to a slight abnormality that would not significantly limit the
claimant’s physical or mental ability to do basic work activities.” Kirby, 500 F.3d at
707; see also 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(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), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141
(1987). “The sequential evaluation process may be terminated at step two only when the
claimant’s impairment or combination of impairments would have no more than a
minimal impact on her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.
2007) (internal quotation omitted).
Third, if the claimant has a severe impairment, then the Commissioner will
consider 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), 416.920(a)(4)(iii), 416.920(d); see Kelley v.
Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
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) to determine the claimant’s “ability to meet
the physical, mental, sensory and other requirements” of the claimant’s past relevant
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work.

20

C.F.R.

§§ 404.1520(a)(4)(iv),

404.1545(a)(4),

416.920(a)(4)(iv),

416.945(a)(4). “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 also 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). The claimant is responsible for providing evidence the Commissioner
will use to make a finding as to the claimant’s RFC, but the Commissioner is responsible
for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.” 20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain nonmedical evidence and other evidence listed in the regulations. Id. If a claimant retains
the RFC to perform past relevant work, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(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 that there is other work that the claimant can do, given the claimant’s RFC, and his
or her age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 35859 n.5 (8th Cir. 2000). The Commissioner must show not only that the claimant’s RFC
will allow the claimant to make an adjustment to other work, but also that the 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), 416.920(a)(4)(v). If the
claimant can make an adjustment to other work that exists in significant numbers in the
national economy, then the Commissioner will find the claimant is not disabled. If the
claimant cannot make an adjustment to other work, then the Commissioner will find that
the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). At Step
7

Five, even though the burden of production shifts to the Commissioner, the burden of
persuasion to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004).
V.

THE ALJ’S FINDINGS

The ALJ engaged in the five-step sequential analysis outlined above, as reflected
in her written decision.
At Step 1, the ALJ found claimant was not gainfully employed and had not engaged
in substantial gainful activity since November 1, 2012. AR 11.
At Step 2, the ALJ determined claimant had the following severe impairments: “A
shunt malfunction with associated headaches and dizziness, a depressive disorder, and
obesity.” AR 12. The ALJ found “[t]he above impairments have been determined by
medically acceptable evidence including signs, symptoms, and laboratory findings . . .
[that] have had more than a minimal effect on the claimant’s ability to perform basic work
activities for a continuous period of at least twelve months.” Id. The ALJ found other
claimed impairments, including restless leg syndrome and periodic upper respiratory and
periodic sinus issues were not severe. Id.
At Step 3, the ALJ determined claimant did not have an impairment or a
combination of impairments which met or medically equaled the severity of a listed
impairment. AR 12. In addressing claimant’s headaches, the ALJ noted that there was
no listed impairment for headaches, then proceeded to analyze whether claimant’s
headaches medically equaled the listed impairment for brain injuries or neurological
impairments. Id. The ALJ found “claimant does not meet the requirements for a listed
neurological impairment.” Id. The ALJ also noted that claimant reported “that her
headaches were diminished, following her surgeries to fix the shunt.” Id.

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At Step 4, the ALJ determined claimant’s RFC. The ALJ found that claimant
could perform a range of light work, as that term is defined in 20 C.F.R. § 404.1567(b).
AR 15. The ALJ determined claimant could lift and/or carry and push and/or pull twenty
pounds occasionally and ten pounds frequently. Id. The ALJ further found claimant
could “stand and/or walk, with normal breaks, for a total of six hours in a workday.”
Id. The ALJ found claimant could “sit, with normal breaks, for a total of six hours in a
workday,” and could “climb ramps, stairs, ladders, ropes, or scaffolds occasionally.”
Id. Finally, the ALJ found claimant could not “work at unprotected heights or around
hazards[,]” but was “able to perform tasks of three to four steps.” Id. In arriving at
claimant’s RFC, the ALJ concluded “claimant’s statements concerning the intensity,
persistence, and limiting effects” of her symptoms were “not entirely credible.” AR 19.
The ALJ afforded “little weight” to the opinions of claimant’s neurologist, Dr. Wilson,
and her primary care physician, Dr. Arnevik. AR 21-22. On the other hand, the ALJ
credited the opinions of state agency physicians who never examined claimant with
“significant weight,” afforded the opinion of the consultative psychologist who examined
claimant with “significant weight,” and only gave the opinion of state agency reviewing
psychologist “some weight.” AR 22-23.
The ALJ ultimately determined that claimant’s RFC classification demonstrated
that she was capable of performing her past relevant work as a cashier, security guard,
and production worker. AR 24. Accordingly, the ALJ found claimant was not disabled,
and so did not reach Step 5 of the analysis.
VI.

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) (internal citation omitted); see 42 U.S.C. § 405(g) (“The findings of the
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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 (internal quotation omitted). The Eighth Circuit 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 quotations
omitted).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but [it does] 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. 2010)
(citing Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). 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) (internal citation omitted). 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) (quoting Naber v.
Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if after reviewing the evidence, the
10

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, 547
F.3d at 935). 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.”).
VII. DISCUSSION
Claimant argues the ALJ’s decision is flawed for three reasons:
1.
Claimant argues the ALJ erred in her analysis of claimant’s
headaches. Specifically, claimant argues that the ALJ erred at Step 3 when she
failed to evaluate whether claimant’s headaches met the disability at listing 11.03.
Doc. 17, at 6-8. Further, claimant argues the ALJ erred at Step 4 by failing to
provide for any work-related limitations in the RFC assessment related to
claimant’s headaches and dizziness. Doc. 17, at 8-10.
2.
Claimant argues the ALJ failed to give proper weight to her treating
physicians’ opinions, and that substantial evidence cannot support the ALJ’s
decision when the ALJ relied on the opinions of non-examining physicians. Doc.
17, at 10-17.
3.
Claimant argues the ALJ erred in assessing claimant’s credibility
because the ALJ did not consider claimant’s work history. Doc. 17, at 17-20.
The court will address these arguments separately below.

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A. The analysis regarding claimant’s headaches
As noted above, claimant makes two arguments regarding the ALJ’s analysis of
claimant’s headaches. First, claimant argues that at Step 3, the ALJ should have analyzed
whether claimant’s headaches met or were equivalent to the listing at 11.03. Second,
claimant argues that at Step 4, the ALJ failed to provide any limitation for claimant’s
headaches in arriving at the RFC assessment. The court will address each of these subarguments in turn.
1. Headaches and Listing 11.03
Claimant argues that the ALJ erred when she failed to determine whether claimant
had impairments that met or equaled those under Listing 11.03, which addresses “nonconvulsive epilepsy” because it was the most analogous of the listings. Doc. 17, at 6-7.
The Commissioner argues that the ALJ did not err because headaches were a symptom
of her brain injury and not themselves a limitation, or alternatively, claimant’s headache
limitations would not meet or equal limitations under Listing 11.03. Doc. 20, at 6-9.
As noted above, the ALJ found claimant had a “severe impairment” of “a shunt
malfunction with associated headaches and dizziness.” AR 12. At Step 3, the ALJ
asserted “there is no listing for headaches” and proceeded to analyze whether claimant’s
headaches met the listed impairments for brain injuries or neurological impairments at
Listing 11.01, finding they did not. Id.
The court finds unpersuasive the Commissioner’s argument that the ALJ did not
find claimant’s headaches to be an independent, severe impairment. First, claimant’s
“shunt malfunction” is not an independent physical impairment; it was a mechanical
malfunction that caused claimant’s headache and dizziness impairments. Second, the
ALJ clearly treated claimant’s headaches as if they were an independent impairment when
the ALJ analyzed whether they equaled the impairments for brain injuries. Third, much
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of the ALJ’s decision focuses on claimant’s headaches and the extent to which headaches
impaired her functioning. Finally, the Commissioner cites no case, and the court could
find none, that concluded that headaches are not impairments when caused by shunt
malfunctions.
The court also finds that the ALJ should have analyzed whether claimant’s
headaches met or equaled the impairments at Listing 11.03. Migraine headaches are a
listed impairment under 11.03. In this case, claimant is not alleging she suffers from
migraine headaches, but there is no question she suffers from an unusual congenital
condition that can cause headaches, and her medical records reflect a history of her
suffering from episodic headaches. Listing 11.03 appears to be analogous to claimant’s
impairment. Neither the ALJ, nor the state agency consulting physicians, made any
reference to Listing 11.03. The Commissioner has provided no reason why Listing 11.03
cannot or should not apply to claimant’s condition.
Rather, the Commissioner argues that claimant cannot demonstrate that her
condition would meet or equal the limitations at Listing 11.03. Doc. 20, at 6-9. It is
true that a claimant bears the burden of showing harm flowed from an agency error. See
Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (Department of Veterans Affairs) (citing
Nelson v. Apfel, 131 F.3d 1228, 1236 (7th Cir. 1997) (Social Security Administration)
and Panhandle Co-op. Ass’n, Bridgeport, Neb. v. E.P.A., 771 F.2d 1149, 1153 (8th Cir.
1985) (Environmental Protection Agency)). In other words, “[i]f it is obvious that the
evidence of record cannot possibly support a finding that [claimant’s] impairment meets
or equals Listing 11.03, then the ALJ’s error would be harmless and remand would not
be necessary.” Mann v. Colvin, 100 F. Supp. 3d 710, 720 (N.D. Iowa 2015). That is
not the case here, however, as the court finds there is evidence in the medical record
demonstrating claimant has a long history of suffering from headaches. The ALJ should
have considered whether her headaches met or equaled Listing 11.03. Id. (“Having
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carefully reviewed the record, I find that there is sufficient evidence of chronic, severe
migraine headaches during the relevant time period that the ALJ must consider whether
that impairment medically equals Listing 11.03.”). Had the ALJ conducted such an
analysis and concluded claimant’s impairment did not meet or medically equal the listed
impairment, this court would not reverse that finding “so long as it fell within the
‘available zone of choice.’” Id., at 721 (citing Bradley v. Astrue, 528 F.3d 1113, 1115
(8th Cir. 2008)). “Unfortunately, the ALJ did not consider Listing 11.03, meaning there
was no ‘choice’ and, therefore, no ‘zone.’” Id.
The court is unpersuaded by the Commissioner’s argument that “the ALJ found
that plaintiff’s claims of frequent headache pain were not credible.” Doc. 20, at 9. The
ALJ’s credibility finding is not directly at issue here. The ALJ found claimant had a
severe impairment of “shunt malfunction with associated headaches and dizziness.”
Having made that finding, it was necessary for the ALJ to analyze whether that
impairment met or equaled Listing 11.03, even if the ALJ believed the claimant’s
description of the “intensity, persistence, and limiting effects” of the headaches were
“not entirely credible.” AR 19.
Accordingly, the court finds that this case should be remanded and that the ALJ
should analyze whether claimant’s headaches meet or medically equal Listing 11.03.
2. Headaches and the RFC assessment
Claimant argues that the ALJ erred at Step 4 in determining claimant’s RFC
assessment because the ALJ did not include any limitations related to claimant’s
headaches. Doc. 17, at 8-10. The Commissioner argues that claimant is inviting the
court to impermissibly reweigh the evidence, and asserts the ALJ did account for
claimant’s headaches in her RFC assessment.

Doc. 20, at 10.

Specifically, the

Commissioner argues that the RFC limitation that claimant not work around unprotected
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heights and hazards, and claimant’s restriction to performing three to four step tasks
account for claimant’s headaches. Doc. 20, at 11.
A claimant’s RFC is “the most [the claimant] can still do” despite his or her
“physical or mental limitations.”

20 C.F.R. § 404.1545(a)(1).

“The ALJ must

determine a claimant’s RFC based on all of the relevant evidence.” Fredrickson v.
Barnhart, 359 F.3d 972, 976 (8th Cir. 2004) (internal citation omitted). This includes
“an individual’s own description of [her] limitations.” McGeorge v. Barnhart, 321 F.3d
766, 768 (8th Cir. 2003) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)).
The claimant’s RFC “is a medical question,” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001), and must be supported by “some medical evidence.” Dykes v. Apfel, 223 F.3d
865, 867 (8th Cir. 2000) (per curiam).

The medical evidence should address the

claimant’s “ability to function in the workplace.” Lewis, 353 F.3d at 646. At Step Four,
the ALJ determines the RFC based on all relevant evidence. See Harris v. Barnhart, 356
F.3d 926, 929-30 (8th Cir. 2004).
The ALJ is not required “to mechanically list and reject every possible limitation.”
McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011). Furthermore, “[a]n ALJ’s failure
to cite specific evidence does not indicate that such evidence was not considered.”
Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010) (quoting Black v. Apfel, 143 F.3d
383, 386 (8th Cir. 1998)). “[T]he ALJ may reject the conclusions of any medical expert,
whether hired by a claimant or by the government, if inconsistent with the medical record
as a whole.” Bentley v. Shalala, 52 F.3d 784, 787 (8th Cir. 1995). The RFC must only
include those impairments which are substantially supported by the record as a whole.
Goose v. Apfel, 238 F.3d 981, 985 (8th Cir. 2001); see also Forte v. Barnhart, 377 F.3d
892, 897 (8th Cir. 2004).
There is no question that the ALJ discussed claimant’s headaches at length in her
RFC analysis. See AR 12-23. It is also clear that the ALJ did not find claimant’s
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description of her headaches as “entirely credible” and afforded greater weight to nonexamining state agency consulting physicians than to claimant’s treating physicians. Id.
Even the consulting state agency doctors recognized that claimant’s headaches affected
her ability to maintain attention and concentration. AR 75, 92-93. The question is
whether the limitations the ALJ imposed adequately reflect the impairments resulting
from claimant’s headaches.
The ALJ’s limitation of claimant being able to perform three to four step tasks
presumably was intended to address the impact claimant’s headaches had on her ability
to maintain attention and concentration. Claimant has not identified another limitation
that she believes is required. Claimant argues that the ALJ should have “at the very
least” added the limitation that she needed “to sit down” because of her dizziness. Doc.
17, at 9. The record, however, contains little evidence that claimant suffered problems
from dizziness that required work limitations.

Rather, there are only occasional

references to claimant feeling dizzy and nothing from her treating doctors that suggest a
work limitation is necessary, specifically, to address that issue. In any event, the ALJ
addressed this issue by adding the limitations that claimant cannot work at unprotected
heights or around hazards. AR 15. Claimant criticizes the RFC because it “anticipates
[she] can function 8-hours per day, 5-sayd per week,” arguing that the RFC fails to
address her “work-related abilities when a headache or dizziness occurs.” Doc. 17, at
9. The ALJ afforded significant weight to the non-examining state agency doctors who
did not find claimant required limitations based on her headaches and dizziness. AR 22.
Based on that evidence, the RFC assessment is not itself inappropriate. Whether the ALJ
properly weighed the medical evidence is a different matter, discussed next.

16

B. The weight afforded claimant’s treating physicians
Claimant argues that the ALJ improperly discounted the opinions of claimant’s treating
doctors. Doc. 17, at 10-17. The Commissioner maintains that the ALJ acted within the scope
of her discretion in discounting these doctors’ opinions and affording greater weight to state
agency physicians who never examined claimant. Although it is a close call, the court finds
that substantial evidence supports the ALJ’s decision, and the weight she afforded the various
medical professionals fell within her zone of choice.
Generally, it is for an ALJ to determine the weight to be afforded to the opinions of
medical professionals, and “to resolve disagreements among physicians.” Cline v. Colvin,
771 F.3d 1098, 1103 (8th Cir. 2014). An ALJ is required to give “controlling weight” to a
treating-source’s medical opinion if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence.” 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). See also Martise v. Astrue, 641 F.3d 909, 925
(8th Cir. 2011) (holding that an ALJ must give “substantial weight” to a treating physician,
but may discount that weight if the opinion is inconsistent with other medical evidence). An
ALJ may consider state agency physicians’ opinions and may rely upon them in making
her findings. See 20 C.F.R. § 404.1527(e)(2)(i); see also Casey v. Astrue, 503 F.3d 687,
697 (8th Cir. 2007) (holding that it is well settled that an ALJ may consider the opinion
of an independent medical advisor as one factor in determining the nature and severity of
a claimant’s impairment). When assessments of state agency medical consultants are
consistent with other medical evidence in the record, these assessments can provide
substantial evidence supporting the ALJ’s RFC assessment.

See Stormo, 377 F.3d at

807-08.
The opinions of non-examining state agency consulting physicians normally cannot
constitute “substantial evidence” in support of an ALJ’s decision when those opinions
17

directly conflict with the opinions of treating or examining sources. See, e.g., Shontos
v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003) (“The opinions of non-treating
practitioners who have attempted to evaluate the claimant without examination do not
normally constitute substantial evidence on the record as a whole.”) (citing Jenkins v.
Apfel, 196 F.3d 922, 925 (8th Cir. 1999)); Dixon, 324 F.3d at 1002-03 (holding that
“[g]iven the contradicting recommendations in the record and the insufficiently developed
record surrounding Dixon’s cardiac problems, [the non-examining consulting
physician’s] opinion does not constitute substantial record evidence that Dixon can
perform medium work.”) (citing Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)).
Claimant cites Shontos, Dixon, Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir.
2004), and Bowman v. Barnhart, 310 F.3d 1080, 1085 (8th Cir. 2002), for the
proposition that “the opinions of non-examining Agency consultants do not constitute
substantial evidence when they are directly contradicted by treating and/or examining
sources.” Doc. 17, at 15-16; Doc. 21, at 5 n.5. Claimant overstates the holdings of
these cases. These, and other cases, stand for the proposition that ALJs should generally
give greater weight to treating physicians over non-examining ones, and that the opinions
of non-examining physicians, standing alone, do not constitute substantial evidence.
There is no absolute rule that an ALJ must accept a treating physician’s opinion if it
conflicts with that of a non-examining physician. Rather, the ALJ is called upon to
examine the entire record, consider all of the medical evidence, and assign weight to the
evidence in light of the entire record. An ALJ may give the opinions from non-treating,
non-examining sources more weight than a treating source’s medical opinion when they
are also supported by “better or more thorough medical evidence.” Prosch v. Apfel, 201
F.3d 1010, 1014 (8th Cir. 2000) (internal citation omitted). Ultimately, it is the ALJ’s
duty to assess all medical opinions and determine the weight given to these opinions. See
Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (“It is the ALJ’s function to resolve
18

conflicts among ‘the various treating and examining physicians.’”) (quoting Bentley, 52
F.3d at 785).
Here, the ALJ gave “little weight” to the opinions of claimant’s primary care
physician, Dr. Arnevik, and her neurologist, Dr. Wilson, who treated claimant, but gave
“significant weight” to the “physical assessments” of the non-examining state agency
doctors’ opinions. AR 21-23. Whether this was within the ALJ’s zone of choice depends
on the degree to which there is a basis in the medical evidence to support the ALJ’s
resolution of the conflict in the medical opinions.
Dr. Arnevik
The ALJ discounted Dr. Arnevik’s opinion concerning limitations arising from
claimant’s headaches because claimant’s shunt malfunctions were managed by
neurosurgeons. AR 22. Specifically, Dr. Arnevik noted that claimant suffered from
“[i]ntermitten VP shunt malfunctions [which] caus[ed] significant impairment—Managed
by Neurosurgery at U. of Iowa City, IA.” AR 681. This is consistent with the record
as a whole that shows when claimant’s shunt malfunctioned, she incurred periods of
increased headaches, but when the neurosurgeon managed the issue by replacing or
revising the shunt, it relieved her headaches.
The ALJ further discounted Dr. Arnevik’s opinion because claimant’s headache
pain was treated by “routine medications with minimal adjustment or modification.” AR
22. The court’s review of medical records from Dr. Arnevik’s office shows support for
the ALJ’s conclusion that Dr. Arnevik made occasional, minor adjustments to claimant’s
medication over time. This was a proper consideration because a condition that can be
managed through medication is not disabling. Brown v. Astrue, 611 F.3d 941, 955 (8th
Cir. 2010) (“If an impairment can be controlled by treatment or medication, it cannot be
considered disabling.” (internal quotation and citation omitted)).

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Finally, the ALJ discounted Dr. Arnevik’s opinion because he submitted his
opinions as answers to a form questionnaire. AR 22. The medical records from Dr.
Arnevik’s office, while they reflect claimant’s symptoms and complaints during the
course of treatment from November 2011 to April 2014, do not, themselves, reflect Dr.
Arnevik observing or identifying limits to claimant’s functional capacity. AR 554-97,
645-69, 682-759. See Teague v. Astrue, 638 F.3d 611, 616 (8th Cir. 2011) (determining
ALJ properly discounted medical source statement when physician’s notes “reported no
findings of significant limitation or inability to work”). The only place Dr. Arnevik’s
opinion regarding claimant’s functional capacity is reflected, therefore, is on a checkbox
form he filled in. AR 678-81. Although Dr. Arnevik endorses multiple work-related
limitations on this form, he did not provide any explanation or medical basis for those
limitations. “[A] treating physician’s opinion does not deserve controlling weight when
it is nothing more than a conclusory statement.” Hamilton v. Astrue, 518 F.3d 607, 610
(8th Cir. 2008) (citing Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir. 1996)). Moreover,
an ALJ may properly discount an opinion reflected only in a checkbox form. See, e.g.,
Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012) (internal quotation omitted)
(“[R]ecogniz[ing] that a conclusory checkbox form has little evidentiary value when it
“cites no medical evidence, and provides little to no elaboration.”); O’Leary v.
Schweiker, 710 F.2d 1334, 1341 (8th Cir. 1983) (“Because of the interpretive problems
inherent in the use of forms such as the physical capacities checklist, our Court has held
that while these forms are admissible, they are entitled to little weight . . . .”) (internal
citations omitted).
Dr. Wilson
In discounting Dr. Wilson’s testimony, the ALJ concluded his opinions were
internally inconsistent because he wrote two letters on the same day, one excusing
claimant from work, and the other releasing her to work as an EMT. AR 21. Claimant
20

argues the letters are not inconsistent because the first letter addressed claimant’s ability
to work full time, while the second addressed her ability to work a part-time job. Doc.
17, at 13-14. It was not unreasonable for the ALJ, however, to conclude that a letter
recommending claimant be “excused from work indefinitely” (AR 632), is inconsistent
with a letter indicating claimant “may resume duty with the volunteer ambulance” (AR
633), regardless of whether the ambulance service was part time work. See Harris, 356
F.3d at 930 (holding that it was not unreasonable for an ALJ to conclude that claimant’s
part-time work was inconsistent with her claim of disabling headache pain). It was also
reasonable for the ALJ to conclude that “[t]he skilled duties of the emergency medical
technician, even part-time, were not consistent with an individual with persistent
cognitive and concentration problems” as described by Dr. Wilson. AR 21.
The ALJ also discounted Dr. Wilson’s testimony because the “degree of cognitive
limitations were not supported by objective testing.” AR 21. Claimant argues that “[i]t
is entirely unclear what ‘objective testing’ could ‘support’” Dr. Wilson’s testimony. Doc.
17, at 14. The record reflects, however, that neurological testing, including the use of
head CT and brain MRI reports, repeatedly showed normal functioning, even during
periods where claimant was encountering a malfunctioning shunt and undergoing shunt
revisions. See, e.g., AR 454, 511, 581, 638-39; but see AR 655 (finding “cognitive
functioning was abnormal. Mildly slowed responses.”).
The ALJ further discounted Dr. Wilson’s opinions because the ALJ believed he
“appeared to accept the claimant’s reports of subjective complaints at face value.” AR
21. This was, candidly, an inference the ALJ drew from the record. It was not, however,
an unreasonable one in light of the other medical evidence. See Gates v. Astrue, 627
F.3d 1080, 1082 (8th Cir. 2010) (finding the ALJ’s could properly discount the opinions
of treating and examining physicians where the opinions were based largely on the
claimant’s subjective statements and were inconsistent with other evidence).
21

Finally, the ALJ discounted Dr. Wilson’s opinions because the “record
documented improvement following neurosurgical interventions and subsequent
neurological examinations were largely intact,” which was inconsistent with Dr. Wilson’s
opinions. AR 21. The court’s own review of the record supports the ALJ’s conclusion
that claimant improved with treatment and had normal neurological findings. See AR
284, 288, 306, 312, 362, 375, 416, 454, 468, 502, 511, 523, 568, 761, & 783.
The overall impression the court is left with, upon review of the record as a
whole, is that claimant suffered headaches periodically and episodically, with varying
degrees of severity, particularly when her shunt malfunctioned, but when she received
treatment, her headaches were resolved until the next incident when her shunt
malfunctioned. It is clear that claimant suffered a prolonged period of shunt malfunctions
with resulting headaches and dizziness, which the ALJ acknowledged “likely [ ]
incapacitated” her from November 2012 through April 2013. AR 19. A temporary
incapacitation lasting less than twelve months, however, does not constitute a permanent
disability. 20 C.F.R. §§ 404.1509, 416.909. There is some support in the record for
the opinions of Doctors Arnevik and Wilson, but there is also support in the record for
the ALJ to discount the weight of their opinions in light of the other medical evidence.
Ultimately, it is not for this court to weigh the medical evidence or resolve conflict
between medical professionals. So long as the ALJ’s analysis is reasonable, this court
cannot reverse the Commissioner’s decision. See Haggard v. Apfel, 175 F.3d 591, 594
(8th Cir. 1999) (internal citation omitted) (“We may not reverse the Commissioner’s
decision merely because substantial evidence exists in the record that would have
supported a contrary outcome.”). For that reason, the court finds the ALJ acted within
her zone of choice in assessing the weight to give to the doctors’ opinions.

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C. Claimant’s work history as it relates to her credibility
Claimant argues the ALJ erred because the ALJ did not afford her substantial
credibility based on her “stellar work history.” Doc. 17, at 17-20. There is no dispute
that claimant had a consistent work history for twenty-eight years between 1985 and
2012. AR 192-93. The ALJ did not specifically discuss claimant’s work history as a
credibility issue. During the hearing, however, the ALJ reviewed claimant’s work
history (AR 38-42), and in the ALJ’s decision, mentioned claimant’s past employment
(AR 11, 24).
In evaluating a claimant’s credibility, an ALJ must consider the entire record
including the medical records, statements by claimant and third parties, and factors such
as: “(1) the claimant’s daily activities; (2) the 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).

“[A] claimant with a good work record is entitled to substantial

credibility when claiming an inability to work because of a disability.” Nunn v. Heckler,
732 F.2d 645, 648 (8th Cir. 1984) (internal quotation omitted). See also Hutsell v.
Massanari, 259 F.3d 707, 713 (8th Cir. 2001) (holding that a consistent work record
supports the credibility of a disability claimant). As previously noted, in arriving at a
credibility determination, however, an ALJ is not required to discuss every piece of
evidence submitted. Wildman, 596 F.3d at 966. Therefore, the court finds that the ALJ
did not err simply by failing to mention claimant’s work history. See, e.g., Roberson v.
Astrue, 481 F.3d 1020, 1025-26 (8th Cir. 2007) (“It might have been better if the ALJ
had referred specifically to [the claimant’s] work record when determining her credibility
. . . but we do not think that the ALJ was required to refer to every part of the record,
and we think that the portions of the record that [the ALJ] referred to were sufficient to
support his credibility determination.”); Leahy v. Astrue, No. 4:10CV60524AGF, 2011
23

WL 4407452, at *8 (E.D. Mo. Sept. 21, 2011) (holding that an ALJ’s failure to mention
a claimant’s good work history in making a credibility determination is not sufficient,
standing alone, to constitute reversible error); Bryant v. Astrue, No. 4:08CV02910JTR,
2009 WL 3062311, at * 4 (E.D. Ark. Sept. 17, 2009) (same).
Even if the ALJ erred by not specifically addressing claimant’s work history in
determining claimant’s credibility, it was harmless error because the ALJ identified
grounds upon which the ALJ relied to discount claimant’s credibility. See Byes v. Astrue,
687 F.3d 913, 917 (8th Cir. 2012) (to show that an error was not harmless, a claimant
must provide some indication that the ALJ would have decided the case differently if the
error had not occurred). The ALJ relied on medical reports where claimant reported
relief from her headaches after revisions of her shunt (AR 16-18) and found her reports
of headache pain as “inconsistent across sources” (AR 19). The ALJ also apparently
found claimant’s reported symptoms inconsistent with her continuing “to engage in a
wide-range of activities” including working as an EMT. AR 19. The ALJ also found
that claimant’s description of being dizzy inconsistent with claimant climbing on coral
while vacationing in Hawaii and traveling in a “long flight in a crowded plane.” AR 20.
Finally, the ALJ concluded that claimant had a large economic incentive. Id.3

Claimant takes issue with the ALJ’s reliance on financial motive, asserting it was “appalling,”
referencing two instances where claimant expressed concern about paying for insurance, and
arguing that claimant’s financial motive was no different from many similarly situated people.
Doc. 21, at 4. That claimant’s financial motive may be similar to many other applicants does
not, however, make it irrelevant to the ALJ’s analysis of claimant’s credibility. Although this
court may not have weighed claimant’s financial motive in the same manner, it does not mean
the ALJ’s analysis was “appalling.” It bears noting that, in contrast to her opening brief which
maintained a professional tone, claimant’s reply brief left an acerbic aftertaste as a result of the
many pejorative and accusatory terms it contained. See, e.g., “specious” (Doc. 21, at 2 n.3);
“half-truths and further evasions” (Doc. 21, at 3); “deception” (Doc. 21, at 4); “evasions” (Doc.
21, at 4); and “false” (Doc. 21, at 5). This type of vitriolic language is inappropriate and
unprofessional, and detracts from the persuasiveness of claimant’s arguments.
3

24

Therefore, although claimant had a good work history, “[a] good work history [ ]
does not negate any other credibility findings that may be made by the ALJ.” Deischer
v. Colvin, No. 4:15-CV-625 NAB, 2016 WL 2997593, at * 6 (E.D. Mo. May 25, 2016).
This court might, and probably would, have reached a different conclusion regarding the
credibility of claimant’s reported symptoms; but, the court cannot find the ALJ erred in
her credibility finding simply by failing to reference or give substantial weight to
claimant’s work history.
Finally, claimant takes issue with the ALJ’s comment about her reported earnings
from working as an EMT not equating to the stated minimum number of hours of work
per month. AR 11. Claimant argues this was an “unfounded” statement and “carr[ies]
an intimation” that claimant was dishonest. Doc. 17, at 18-19 & n.7. It is not apparent
to the court how the ALJ reached the conclusion that claimant’s earnings were
inconsistent with the requirement that claimant be “on-call” a minimum of forty-eight
hours per month. Nevertheless, the court does not find this statement by the ALJ
troublesome because the ALJ did not reference the statement in assessing claimant’s
credibility.

Rather, the ALJ made this reference only with regard to summarizing

claimant’s prior gainful activity.
Accordingly, the court does not find the ALJ erred in assessing claimant’s
credibility.
VIII. CONCLUSION
The scope of review of the Commissioner’s final decision is set forth in 42 U.S.C.
§ 405(g) which provides in pertinent part:
The court shall have the power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision
of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.
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42 U.S.C. § 405(g). The Eighth Circuit Court of Appeals has stated that:
[W]here the total record is overwhelmingly in support of a finding of
disability and the claimant has demonstrated his disability by medical
evidence on the record as a whole, we find no need to remand.
Gavin v. Heckler, 811 F.2d 1195, 1201 (8th Cir. 1987); see also Beeler v. Brown, 833
F.2d 124, 127 (8th Cir. 1987) (finding reversal of denial of benefits was proper “where
the total record overwhelmingly supports a finding of disability”).
In the present case, the court concludes that the medical records as a whole do not
“overwhelmingly support a finding of disability.” Beeler, 833 F.2d at 127. Instead, the
court finds the ALJ erred only with regard to not considering whether claimant’s
impairments met or equaled Listing 11.03. Accordingly, the Court finds that remand is
appropriate.
Accordingly, for the reasons set forth above in Section VII(A)(1), this case is
reversed and remanded to the Commissioner of Social Security pursuant to sentence four
of 42 U.S.C. § 405(g), for further proceedings as discussed herein.
IT IS SO ORDERED this 28th day of October, 2016.

__________________________________
C.J. Williams
United States Magistrate Judge
Northern District of Iowa

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