Garvey v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION AND ORDER re 1 Complaint filed by Mark L Garvey. The Court affirms the Commissioner's determination that claimant was not disabled. Judgment shall be entered against plaintiff and in favor of the Commissioner. Signed by Magistrate Judge CJ Williams on 3/8/2017. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
MARK L. GARVEY,
Plaintiff,

No. 15-CV-00136-CJW

vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

MEMORANDUM OPINION AND
ORDER

Defendant.
____________________
TABLE OF CONTENTS
I. INTRODUCTION ............................................................................... 2 
II. FACTUAL BACKGROUND ................................................................. 2 
III. PROCEDURAL BACKGROUND .......................................................... 8 
IV. DISABILITY DETERMINATOINS AND THE BURDEN OF PROOF ............ 9 
V. THE ALJ’S FINDINGS ..................................................................... 11 
VI. THE SUBSTANTIAL EVIDENCE STANDARD ..................................... 12 
VII. DISCUSSION ............................................................................... 13 
A. 

The ALJ’s evaluation of Drs. Stientjes and Wright .............................. 14 

B. 

The ALJ’s determination of claimant’s mental impairments ................... 16 

C. 

Past relevant work of telephone solicitor ........................................... 19 

D. 

ALJ’s determination as to claimant’s visual limitations ......................... 21 

VIII. CONCLUSION ............................................................................ 23 

I. INTRODUCTION
Plaintiff, Mark L. Garvey (claimant), seeks judicial review of a final decision of
the Commissioner of Social Security (the Commissioner) denying his application for
disability and 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) correctly apply the regulations in determining whether claimant’s work as a
telephone solicitor met the requirements of past relevant work; (2) properly evaluate the
medical opinion evidence of Dr. Stientjes and Dr. Wright relating to work related
limitations; (3) find that claimant’s mental impairments were not severe at step two of
the disability analysis; and (4) support with substantial evidence her determination in
claimant’s RFC that claimant’s only visual limitation was limited peripheral vision.
II. FACTUAL BACKGROUND
Claimant was born on September 14, 1953, is currently 63, and was 60 years old
at the time of the hearing. AR 41. Claimant completed high school, some classes at a
community college, which did not result in a degree, and was a member of the Air Force
from 1975 to 1976. AR 42. Claimant’s alleged onset date for purposes of his DIB claim
is September 5, 2011, and his alleged onset date for his SSI claim is February 6, 2012.
AR 271.
Claimant visited the emergency room on December 1, 2007, for vomiting,
headaches, and photophobia. AR 424-25. Two days, later he returned to the emergency
room for eye pain, redness, irritation, and photophobia. AR 420. On both occasions,
claimant was found to be stable and was discharged, though he remained in pain. AR
423, 430. During an emergency room visit in April 2008, the emergency room doctor,
Dr. Butler, noted that claimant had an inflamed retina. AR 403.
On June 20, 2012, Dr. John Kuhnlein performed a consultative examination. AR
474. Dr. Kuhnlein gave his opinion as to claimant’s physical restrictions based on his
2

examination of claimant. AR 477. Dr. Kuhnlein opined that claimant had no restrictions
in his ability to lift, push, pull, carry, sit, bend, grip objects, or use his upper extremities.
AR 477-78. Due primarily to leg pain and poor ability to balance, Dr. Kuhnlein also
restricted claimant to: occasionally using stairs; rarely standing, walking, stooping, or
using his lower extremity; and never crawling, kneeling, using ladders, walking on
uneven surfaces, or working on a production line. AR 477-78. Additionally, Dr.
Kuhnlein found that claimant was not restricted in his vision, hearing, communication,
and had no restrictions as to environments involving heat, cold, dust, or mist. AR 478.
Dr. Kuhnlein did restrict claimant from using power tools and traveling. AR 478. Lastly,
Dr. Kuhnlein performed a range of motion examination and found in every area, except
the flexing of the neck, claimant could perform the full range of motion. AR 480-81.
Dr. Shannon Throndson was claimant’s primary care provider. AR 485. Claimant
called Dr. Throndson’s office on May 11, 2012, and reported waking in the middle of
the night while having a panic attack that immobilized him for five minutes. AR 486.
On June 27, 2012, he stated that he felt depressed and Dr. Throndson prescribed
defendant depression medication. AR 485.
On August 3, 2012, claimant attended a consultative examination with Dr. Harlan
Stientjes, Ph.D., to which he drove himself, arrived on time, was well oriented, well
groomed, and exhibited adequate eye contact. AR 88, 502-03. During the consultative
exam, claimant responded to questions from the Beck Depression Inventory and Beck
Anxiety Inventory which lead the consultative examiner to conclude he suffered from
depressive and anxiety-based symptoms. AR 88, 503. The reported symptoms of
depression

included:

“feelings

of

worthlessness,

indecisiveness,

difficulties

concentrating, low energy, and fatigue,” but he did not have suicidal or homicidal
ideation. AR 88, 503. The symptoms of anxiety claimant reported were, “numbness or
tingling, heart pounding, fear of the worst happening, feeling terrified, and fear of dying”
and he also experience panic attacks about once a month. AR 503. During the exam, it
was also determined that claimant could read well, had good content recall, and overall
3

average intelligence.

AR 88, 503.

In addition, claimant interacted with others

acceptably, and claimant’s safety judgment was intact, and claimant could tolerate
changes in moderation. AR 504. Claimant reported using a computer for research. AR
503. Dr. Stientjes diagnosed claimant with major depressive disorder with anxiety,
avoidant personality traits, and noted that claimant had problems with his primary support
group and Dr. Stientjes gave claimant a GAF 55. AR 504.
Dr. Richard Kettlekamp treated claimant for his cardiovascular conditions. AR
519-40. Dr. Kettlekamp saw claimant for follow ups after the placement of cardiac stents
in April and October 2007. AR 518, 522, 524. During both of these appointments,
claimant denied blurred or double vision. AR 522, 525. On October 28, 2008, claimant
visited Dr. Kettlekamp and claimant denied any blurred or double vision. AR 521. In
April of 2010, claimant attended a one-year follow up and again denied blurred or double
vision. AR 518. In April of 2010, Dr. Kettlekamp found trace ankle edema and trace
foot edema. AR 519.
On May 16, 2012, claimant began going to the University of Iowa Clinic. At this
appointment, claimant sought mental health services. AR 554. Dr. Stephen Russell
determined that he had multifocal choroiditis, scattered chorioretinal scars on both eyes,
outer retinal atrophy in claimant’s left eye, and photoreceptor atrophy in claimant’s right
eye, as well as “[b]ranch retinal vein occlusion [in right eye] with extensive macular
edema.” AR 542, 546. Dr. Russell treated claimant’s macular edema with Avastin. AR
546, 577, 581, 587, 591. In September of 2013, Dr. Russell increased the dosage of the
depression medication prescribed to claimant and recommended therapy because claimant
reported that his depression was worsening. AR 559, 561. In an October 2013 visit with
Dr. Russel, claimant reported that his vision was less blurry, and was not experiencing
any new floaters, flashes, or pain. AR 563. Also during this visit, claimant reports his
blood sugar was 124 and the report notes his last A1C was 5.9. AR 563. At an
appointment on November 27, 2013, claimant complained of throbbing eyes-strain pain
4

in both eyes resulting in a headache, caused by bright lights and looking at a computer
screen. AR 573.
On April 2, 2014, claimant reported that his vision was stable and there had been
no new floaters, flashes, or other increases in vision loss. AR 582. A few months later,
in July 2014, claimant reported to Dr. Russell that his vision had worsened and that he
was experiencing aching in the back of his eyes, which occurred a few times a week and
lasted a few hours at each time. AR 588.
Dr. David Muller, who examined claimant on June 20, 2012, stated that claimant’s
visual condition seemed to be stable, his visual acuity was 20/25, and claimant was doing
well. AR 496. The only limitation to claimant’s vision mentioned in the letter by Dr.
Muller was limited peripheral vision. AR 496-97.
Dr. Dee Wright, Ph.D., is a non-examining state agency medical consultant who
reviewed the medical information provided by claimant, and the consultative
examination, and evaluated complainant’s mental health. AR 88. Dr. Wright concluded
from reviewing the medical evidence that claimant “exhibits variable sustained
attention/concentration,” he would have difficulties performing “extremely complex
cognitive activities that demanded prolonged attention to minute, complex details and
rapid response rates.” AR 89. But, Dr. Wright also concluded that claimant “is able to
sustain sufficient concentration/attention and memory functioning to perform simple to
moderately complex cognitive activities that do not require rapid response rates without
significant limitations of function.” AR 89. Ultimately, Dr. Wright found that claimant
did not have serious impairments to his social functioning, and that claimant’s condition
did not meet or equal any listing. AR 89.
On reconsideration, complainant reported to the state disability office that his
vision had worsened and that he now saw sparkly spots and rings. AR 112, 125. Dr.
Jan Hunter, D.O., affirmed the Dr. Wright’s finding that claimant was not disabled. AR
121, 135.
5

On February 23, 2012, claimant’s wife at the time of the application submitted a
function report.

AR 282-89.

Ms. Garvey indicated that her husband had trouble

balancing and walking, that he walked with a cane, and that he could no longer lift, squat,
bend, stand, reach, walk, kneel, see, or climb stairs as well as he used to. AR 287. Ms.
Garvey also stated that claimant did not handle stress or changes in routine well, and that
he could only maintain concentration for a few minutes. AR 287-88. She further stated
that claimant performed light cleaning, helped take care of his grandchildren, shopped,
drove, made balloon animals, and whittled. AR 283-86.
Claimant reported that his physical conditions were diabetes, heart stints, difficulty
with balance, and deteriorating vision. AR 290. During a typical day, claimant stated
that he would eat, try to walk for exercise, and occasionally make “balloon art” for his
grandchildren. AR 291. He also regularly was able to assist his wife due to her health
problems. AR 291. Claimant reported that he had no trouble taking care of personal
needs, he cooked and cleaned on a regular basis, he could mow the lawn, drive, ride a
bike and a motorcycle, and had no problems handling money. AR 293. He did state he
had trouble sleeping due to nightmares. AR 291. He further reported he had poor
balance, could not walk long distances, and had trouble lifting, squatting, bending,
standing, walking, sitting, kneeling, climbing stairs, and had memory problems. AR
291-95. He emphasized his trouble seeing and concentrating. AR 295. He stated his
vision problem was caused by scaring on his retina which caused “dead spots, floating
black spots and distortion.” AR 297. The scaring also caused photophobia. AR 297.
Claimant reported a worsening of symptoms after July 2012, which included an
increase in severity and frequency of his panic attacks, his photophobia had worsened,
he began to see sparkles in his vision, and his balance problems and severe headaches
had worsened. AR 309. Claimant described his panic attacks as immobilizing. AR 325.
He also reported numbness in his right hand causing him to drop things, and a reluctance
to drive, though he continued to do so. AR 312.
6

In a personal pain and fatigue questionnaire completed September 28, 2012,
claimant complained of pain in his left foot and ankle, as well as a shooting pain from
his right wrist to his neck, and numbness in his right arm. AR 335-36. He stated that
hot showers and exercise, like walking or swimming, helped to alleviate the pain. AR
336. He continued to report that his sleep was affected by his conditions. AR 336. He
also stated that his concentration was affected to the extent that he would get lost while
driving, forget to take a turn, or forget his destination. AR 337.
Claimant testified that he worked for 12 years as a truck driver and a warehouse
worker, which involved: “driving forklifts, unloading and loading trucks, sorting, [and]
carpeting.” AR 43. This also included driving around Iowa delivering the carpeting.
AR 43. Claimant stated that he left this position due to a deterioration in his vision due
to an eye infection and he no longer felt safe driving. AR 44. Claimant also reported
that he worked for Parsons Technology for five months in 1999, and prior to that had
worked for Robert’s Dairy for approximately two years. AR 44. Claimant also worked
a few hours, sporadically, as a magician and balloon animal creator. AR 45.
During a typical day, claimant reported that he assisted his daughter, whom he
lived with, by cleaning the house, doing dishes, preparing meals, picking up and dropping
off his granddaughter at preschool, and helping take care of the cats and guinea pigs. AR
46. Claimant stated that he drove to his granddaughter’s preschool, drove to the store
occasionally, and had driven to the hearing that day. AR 46, 48. Claimant testified that
he did not participate in any social activities, did not go out to movies or other
entertainment activities, and most of his social interaction was with his daughter and
granddaughter. AR 49-50. He also stated he used to whittle, but quit a year and a half
before the hearing because of fear of cutting himself after an accident where he did injure
himself. AR 49-50.
Claimant’s attorney examined him at the hearing about claimant’s vision problems.
AR 52. Claimant testified that he had blind spots on both sides of his head, a sparkly
glitter ring that was permanently in the vision of his left eye. AR 53. Claimant’s vision
7

also contained black moving spots. AR 53. Stated that his vision would likely continue
to get worse, the doctors he had seen did not know the specific cause, and the doctors
had not offered any treatment other than maintenance for his condition. AR 54.
Claimant reported during the hearing he had cardiac stents and diabetes, which
claimant reported was well controlled. AR 55. He also reported that he got headaches
behind his eyes due to his eye condition and claimant reported that the headaches were
daily and that once the headache began, it would remain for the remainder of the day.
AR 58. Claimant also stated he took medication for anxiety because he suffered from
panic attacks. AR 55-56. Claimant also reported depression, which was mostly brought
on by personal relationship problems. AR 57. Claimant stated that he was receiving
counseling from the Veteran’s Administration. AR 61.
He testified that he rode a bicycle for transportation and exercise. AR 62. He
stated that he quit his prior employment because of his eye problems, combined with an
altercation with his supervisor which was the “trigger” for him to quit. AR 63. The
vocational expert testified that she believed claimant could return to being a telephone
solicitor with his limitations, unless one of the limitations involved a decreased ability to
concentrate. AR 69-70. Claimant stated he felt that his vision problems and problems
with light sensitivity would preclude him from working as a telephone solicitor because
staring at the computer screen would trigger his headaches. AR 59-60.
III. PROCEDURAL BACKGROUND
Claimant filed for disability and disability insurance benefits and supplemental
security income on February 6, 2012. AR 14. Claimant alleged he became disabled on
September 5, 2011. AR 14. Both applications were denied initially on September 14,
2012, and upon reconsideration on November 12, 2012. AR 14. On December 13,
2012, claimant requested a hearing with an ALJ, and claimant appeared for a video
hearing conducted by Administrative Law Judge Tela L. Gatewood on December 18,
2013. AR 14. Vocational expert, Julie A. Svec, also appeared at the hearing. AR 14.
8

The ALJ rendered her decision August 5, 2014, finding claimant not disabled, and the
Appeals Council declined to review claimant’s case on September 25, 2015. AR 1, 30.
On April 12, 2016, the parties consented to allow the final disposition of the case
to be entered by a United States Magistrate Judge. Doc. 8. The parties submitted briefing
on the issues arising in this case (Doc. 14, 15), and the case was ready for decision on
July 11, 2016.

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 twelve months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. §
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905 (2016). 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 is disabled, the “ALJ follows the familiar fivestep process, considering whether: (1) the claimant was employed; (2) she was severely
impaired; (3) her impairment was, or was comparable to, a listed impairment; (4) she
could perform past relevant work; and if not, (5) whether she could perform any other
kind of work.” Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010). See Kelley v.
Callahan, 133 F.3d 583, 587–88 (8th Cir. 1998). If at any step the Commissioner can
make a disability determination, disabled or not disabled, then the analysis will be
terminated at that step and that determination of disability will be the final determination
of the Commissioner. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

9

The first step in the process is determining whether the claimant is engaged in
“substantial gainful activity.”

20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

Substantial gainful activity is “work activity that involves doing significant physical or
mental activities” and “the claimant does for pay or profit.” 20 C.F.R. § 220.141 (2016).
Second, the ALJ must consider whether the claimant: (1) has a physical or mental
medically determinable impairment(s); (2) has an impairment or combination of
impairments that is “severe.” See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4). An
impairment is severe if it “significantly limits your physical or mental ability to do basic
work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
Third, if the ALJ has found that the claimant is not engaged in substantial gainful
activity and that he has at least one or a combination of impairments that is severe, the
ALJ will determine if any of these impairments meet or are equivalent to a listing. See
20 C.F.R. §§ 404.1520(a)(4)(i)-(iii), 416.920(a)(4).
At this point in the analysis, the ALJ will determine the claimant’s residual
functional capacity (RFC), which is the most physical and mental ability a claimant has
despite the physical and mental limitations that their impairments may impose. See 20
C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(vi), 404.1545(a), 416.945(a). After the
ALJ has determined the claimant’s RFC she will use that to determine whether, with the
limitations from claimant’s impairments, claimant can engage in any past relevant work.
See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Lastly, if the claimant cannot engage in any past relevant work, the ALJ will
determine if there is any work in the local or national economy that the claimant could
perform, based on their RFC, age, education and work experience. See 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v).

During this last step, the burden shifts to the

Commissioner to prove that there exist “a significant number of other jobs in the national
economy.” Brock v. Astrue, 674 F.3d 1062, 1064 (8th Cir. 2012).
A claimant bears the burden to prove disability and submit the evidence required
to make the disability determination. The claimant is responsible for providing evidence
10

the Commissioner will use to make a finding as to the claimant’s impairments, their
severity and limitations, and 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).

V. THE ALJ’S FINDINGS
The ALJ engaged in the analysis outlined above and found claimant not disabled
at step four of the analysis.
At Step 1, the ALJ found claimant was not gainfully employed and had not engaged
in substantial gainful activity since September 5, 2011, the alleged onset of disability
date. AR 17.
At Step 2, the ALJ determined claimant had the following medically determinable
impairments: vision limitations, diabetes mellitus, hypertension, obesity, depression,
anxiety, avoidant personality disorder, and musculoskeletal pain. AR 17-18. The ALJ
found claimant’s impairments of vision limitations, diabetes mellitus, hypertension, and
obesity to be severe under 20 C.F.R §§ 404.1520(c), 416.920(c). Id.
At Step 3, the ALJ found that claimant did not have an impairment or combination
of impairments that met or medically equaled the severity of a listed impairment under
20 C.F.R. Part 404, Subpart P, Appendix 1. AR 18. At this step, the ALJ also engaged
in the required analysis under 20 C.F.R §§ 404.1520a, 416.920a. AR 20. She found
that claimant’s mental impairments of depression, anxiety, and avoidant personality
disorder mildly affected his ability to carry out activities of daily living, mildly affected
his social functioning, mildly affected his concentration, persistence, or pace, and that
claimant had no episodes of decompensation. Id.

11

At Step 4, the ALJ found claimant had the RFC to perform a range of medium
work. AR 21. The ALJ determined: claimant could lift and/or carry and push and/or
pull fifty pounds occasionally, twenty-five pounds frequently,” stand and walk, on level
terrain and with normal breaks for six hours in a workday. Id. She also found that he
could sit for six hours in a workday, but could not climb ladders, ropes, or scaffolds,
work at unprotected heights or around hazards. Id. Lastly, the ALJ found that claimant
had limited peripheral vision. Id. After determining claimant’s RFC, the ALJ found that
claimant could return to his past work as a telephone solicitor. AR 29. Finding that
claimant could return to his past work, the ALJ found claimant not disabled at any time
within the relevant period. Id. Accordingly, the ALJ did not proceed to Step 5.

VI. THE SUBSTANTIAL EVIDENCE STANDARD
“The court’s task is to determine whether the ALJ’s decision ‘complies with the
relevant legal requirements and is supported by substantial evidence in the record as a
whole.’” Halverson, 600 F.3d at 929 (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th
Cir. 2008)). “Substantial evidence is less than a preponderance but is enough that a
reasonable mind would find it adequate to support the conclusion.” Kluesner v. Astrue,
607 F.3d 533, 536 (8th Cir. 2010).
This standard is “something less than the weight of the evidence and it 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)
(citing Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir. 1991)) (internal quotes omitted).
“We will disturb the ALJ’s decision only if it falls outside 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.” Nicola v. Astrue,
480 F.3d 885, 886-887 (8th Cir. 2007) (citing Culbertson, 30 F.3d at 939). “If, after
12

review, we find it possible to draw two inconsistent positions from the evidence and one
of those positions represents the Commissioner’s findings, we must affirm the denial of
benefits.” Kluesner, 607 F.3d at 536.
In reviewing the Commissioner’s decision, all of the evidence in the record will
be considered, including evidence that does not support the Commissioner’s decision.
Cline v. Colvin, 771 F.3d 1098, 1102 (8th Cir. 2014) (citing Krogmeier v. Barnhart, 294
F.3d 1019, 1022 (8th Cir. 2002)). “We do not reweigh the evidence, and we defer to
the commissioner’s credibility determinations if they are supported by good reasons
and substantial evidence.” Id. (citing Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
2006)) (internal quotations omitted).

VII. DISCUSSION
Claimant argues the ALJ’s decision is flawed for four reasons:
1.
Claimant argues the ALJ erred because she failed to properly
evaluate the medical opinion evidence of Dr. Stientjes and Dr. Wright relating to
work-related limitations. Doc. 14, at 9.
2.
Claimant argues the ALJ failed to find that claimant’s mental
impairments were not severe at step two of the disability analysis. Doc. 14, at 12.
3.
Claimant argues that the ALJ erred in her application of the
regulations in determining claimant’s work as a telephone solicitor met the
requirements of past relevant work. Doc. 14, at 13.
4.
Claimant argues the ALJ’s determination of claimant’s residual
functional capacity is not supported by substantial evidence. Doc. 14, at 3.
The Court will address these arguments separately below.

13

A. The ALJ’s evaluation of Drs. Stientjes and Wright
Claimant argues that the ALJ did not adequately evaluate the medical opinion
evidence of doctors Stientjes and Wright. Doc. 14, at 9. The Commissioner argues that
the ALJ’s consideration of the opinions of Dr. Stientjes and Dr. Wright were proper.
Doc. 15, at 13.
The ALJ is required to consider certain factors in evaluating the opinion evidence
of medical sources, which are set out in 20 C.F.R. § 404.1527(c). The factors are:
examining relationship, treatment relationship, supportability, consistency, and
specialization.

20 C.F.R. § 404.1527(c)(1)-(6).

When considering the treatment

relationship, the ALJ must also consider the length of the treatment relationship and how
many times the medical source saw the claimant. 20 C.F.R. § 404.1527(c)(2). The
Court will “not reweigh the evidence presented to the ALJ, and it is ‘the statutory duty
of the ALJ, in the first instance, to assess the credibility of the claimant and other
witnesses.’” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (quoting Bates v.
Chater, 54 F.3d 529, 532 (8th Cir.1995)). It is the ALJ’s function to resolve conflicts
among the opinions of various treating and examining physicians. Pearsall v. Massanari,
274 F.3d 1211, 1219 (8th Cir. 2001). See Phillips v. Colvin, 721 F.3d 623, 629 (8th
Cir. 2013) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971)) (finding the ALJ
properly resolved conflicts in medical opinion testimony about a claimant’s IQ scores by
comparing the medical evidence with other evidence on the record). “As a general
matter, the report of a consulting physician who examined a claimant once does not
constitute ‘substantial evidence’ upon the record as a whole . . . .” Wagner v. Astrue,
499 F.3d 842, 849 (8th Cir. 2007) (internal quotation omitted).
The Court finds that the ALJ appropriately considered the factors of 20 C.F.R. §
404.1527 when evaluating the medical opinion evidence of Dr. Wright and Dr. Stientjes
and assigning a weight to those opinions. The ALJ gave some weight to Dr. Stientjes’
medical opinion and gave Dr. Wright’s medical opinion, as claimant’s physical ability,
significant weight, and some weight to Dr. Wright’s opinion as to claimant’s mental
14

limitations. AR 26-27, 29-30. In limiting the weight given to Dr. Stientjes’ medical
opinion as to claimant’s mental functioning, the ALJ noted that Dr. Stientjes had only
examined the patient once and reported that claimant was fully oriented, denied selfharm, compulsions, delusions, obsessions, and aggressive tendencies. AR 26. The ALJ
also noted Dr. Stientjes’ reported claimant read fluently, had good content recall and
inferential comprehension, claimant articulated normally, and attempted to make jokes.
AR 26. The ALJ also relied on claimant’s reports of daily activities, including running
errands and caring for his grandchildren and his lack of specialized treatment for mental
health problems. AR 26.
The ALJ appropriately discussed her reasoning in not giving substantial weight to
Dr. Stientjes’ GAF score. The credibility and weight given to evidence is a question for
the ALJ and the Court will not reweigh medical evidence if the ALJ gave good reasons
for giving the medical evidence the weight that she did. The ALJ gave very little weight
to the GAF, stating that it was a subjective test not intended for forensic purposes and
citing the DSM–IV and the decision of the Commissioner not to endorse the use of the
GAF in disability determinations. AR 26. See Fed. Reg. 50,746, 50,764-65 (Aug. 21,
2000); Jones v. Astrue, 619 F.3d 963, 974 (8th Cir. 2010) (citing DeBoard v. Comm’r
of Soc. Sec., 211 Fed. App’x. 411, 415 (6th Cir. 2006)).
Dr. Wright was a non-examining consultant who evaluated the record at the time
of initial consideration of claimant’s claim and relied heavily on the psychological opinion
of Dr. Stientjes. AR 104-06. The ALJ limited the weight given to Dr. Wright’s, as well
as the other state agency psychological consultant’s, opinion of claimant’s mental
impairments, citing lack of explanation for the determination that claimant had mild
restrictions, claimant’s testimony about his daily activities, and Dr. Wright’s reliance on
Dr. Stientjes’ opinion. AR 29. The Court finds the ALJ applied the appropriate factors
in evaluating the medical opinion evidence, and engaged in a thorough discussion of those
factors as related to claimant’s mental health, including the weight given to the opinions
of Dr. Stientjes and Dr. Wright.
15

B. The ALJ’s determination of claimant’s mental impairments
Claimant argues that the ALJ’s finding that claimant’s mental impairments were
not severe at step two is not supported by substantial evidence.

Doc. 14, at 12.

Specifically, claimant argues that the ALJ did not properly apply the psychiatric review
technique laid out in 20 C.F.R. 404.1520a. The Commissioner argues that claimant failed
to meet his burden of establishing a mental impairment or combination of impairments
that was severe. Doc. 15, at 11.
At the second step of the five step sequential process, a claimant must have a
medically determinable impairment(s) and that impairment or a combination of
impairments must be severe. At step two, the burden is on claimant to prove both that
he has a medically determinable impairment and that the impairment is severe. See
Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000); 20 C.F.R. § 404.1512(a). A
“mental impairment must be established by medical evidence consisting of signs,
symptoms, and laboratory findings.” 20 C.F.R. § 404.1508. A severe impairment is
any “impairment or combination of impairments which significantly limits your physical
or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
At the second step of the analysis, when a claimant may be disabled due to a mental
impairment, the ALJ is required to conduct an analysis under 20 C.F.R. § 404.1520a, to
determine the severity of the mental impairment. Cuthrell v. Astrue, 702 F.3d 1114,
1117 (8th Cir. 2013) (citing Nicola, 480 F.3d at 887). This analysis requires the ALJ to
assess and document in her decision four functional areas to which the ALJ must assign
a rating. 20 C.F.R. § 404.1520a(b)-(e). The four functional areas are activities of daily
living, social function, concentration, persistence, or pace, and episodes of
decompensation. 20 C.F.R. § 404.1520a(c)(2).
Claimant argues that the ALJ did not meet the requirements of 20 C.F.R. §
404.1520a(e), because the ALJ’s opinion did not state the “significant history, including
examination and laboratory findings, and the functional limitations that were considered
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in reaching a conclusion about the severity of the mental impairment(s).” 20 C.F.R.
404.1520a(e)(4). Although it would have been preferable for the ALJ to have included
additional analysis in the section where she evaluated the four functional factors, the
Court finds the ALJ adequately supported her decision that claimant’s depression was not
severe under her Step 5 analysis of claimant’s medical evidence for purposes of
determining claimant’s RFC.
In Step 5 of the ALJ’s analysis, she discussed claimant’s entire mental health
history, including his initial discussions of depression with his primary care physician,
as well as the psychological consultant Dr. Stientjes’s findings from administering the
Beck Depression and Anxiety inventories. AR 25-26. The ALJ’s discussion of Dr.
Stientjes’ findings also included his opinion based on his testing of claimant’s memory,
concentration, and verbal skills in interacting with others. AR 26. The ALJ also
discussed claimant’s reports of his daily activities in conjunction with the opinion of Dr.
Stientjes and as testified to at the hearing and their consistency with claimant’s alleged
symptoms. AR 26-27. The ALJ also went on to discuss the findings of the state agency
consulting psychologists in determining the severity of claimant’s mental impairments
and the psychiatric review conducted at the initial and reconsideration stages. AR 2829. The psychiatric review reported by the state agency consultant was the same as the
ALJ’s rating of the four functional areas, but the ALJ rated claimant’s difficulties in
maintaining concentration as “mild” rather than “moderate.” AR 20, 28. The Court
finds that while the ALJ could have discussed the reasoning supporting her rating of the
functional factors in Step 4, the ALJ adequately discussed them at Step 5.
The Court also finds that substantial evidence in the record as a whole supports
the ALJ’s finding of non-severity. The ALJ completed the psychiatric review finding
claimant was mildly restricted in activities of daily living, social functioning, and
concentration, persistence, or pace.

AR 20.

In the fourth category, episodes of

decompensation, the ALJ found that claimant had no episodes of decompensation. AR
20. “If [the ALJ] rate[s] the degree of your limitation in the first three functional areas
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as ‘none’ or ‘mild’ and ‘none’ in the fourth area, we will generally conclude that your
impairment(s) is not severe.” 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). The ALJ
correctly applied the regulation and found claimant’s depression not severe.
There is additional evidence on the record supporting the ALJ’s finding of nonseverity.

Claimant reported a history of depression for which he took medication

prescribed to him by Dr. Throndson in May of 2012, after his disability application in
February of 2012. AR 14, 485. Claimant did not allege a mental disability in his original
application.

AR 75, 93.

Dr. Throndson prescribed the medication for claimant’s

depression over the phone and there is no evidence that Dr. Throndson ever evaluated
claimant in person for depression before prescribing him this medication. AR 452, 485.
The only professional evaluation for depression on the record is the consultative
evaluation of Dr. Stientjes, to which the ALJ assigned some weight. AR 26. The ALJ
noted that Dr. Stientjes opined claimant could understand and remember oral and written
directions that were mildly complex, claimant’s safety judgment was marginally intact,
claimant could tolerate changes as long as they came in moderation, and that interactions
with others were acceptable, even though claimant distanced others with excess
verbalization. AR 26. The ALJ also noted that claimant had “mild issues with inattention
and failure to maintain overall vigilance,” all of which the ALJ took into account in
determining that claimant had “mild” difficulties with concentration. AR 20, 26, 50304.

Dr. Stientjes also reported that claimant read fluently and that his reading

comprehension and content recall was intact. AR 26, 503. Dr. Stientjes further reported
claimant correctly repeated a sentence and followed a three step instruction. AR 503.
Furthermore, claimant testified at the hearing that indicates that the medication
that he was on was improving his depression, as he reported that he went off the
medication and then determined when his symptoms came back that he needed to continue
to take the medication.

AR 56.

Claimant’s reported daily activities also tend to

demonstrate claimant had only mild concentration difficulties such as researching and
learning new “tricks” and taking care of his grandchildren. AR 26. The ALJ also gave
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some weight to the non-examining opinion of the state agency consultant and the ALJ
closely followed that opinion, differing only in her determination of the extent to which
claimant’s concentration was affected. AR 28. The Court finds that there was substantial
evidence on the record to support the ALJ’s finding that claimant’s depression was nonsevere.
C. Past relevant work of telephone solicitor
Claimant argues that the ALJ failed to develop the record as to claimant’s duration
and whether claimant learned the skills required for claimant’s work as a telephone
solicitor. Doc. 14, at 13. The Commissioner argues that claimant’s counsel had the
burden to question the vocational expert about whether the skills from the work as a
telephone solicitor would be transferrable after the amount of time that had passed. Doc.
15, at 17-18.
The threshold inquiry is whether the ALJ could properly consider claimant’s work
as a telephone solicitor in 1999 as past relevant work. It is a close question, as claimant
states in his brief, as to whether the ALJ issued her decision within the 15 year recency
requirement, to qualify as past relevant work under of 20 C.F.R. § 404.1565(a). Doc.
14, at 15. “We consider that your work experience applies when it was done within the
last 15 years, lasted long enough for you to learn to do it, and was substantial gainful
activity. We do not usually consider that work you did 15 years or more before the time
we are deciding whether you are disabled . . . .” 20 C.F.R. § 404.1565(a) (2016). See
Muller v. Astrue, 561 F.3d 837, 841 (8th Cir. 2009). “However, work performed prior
to the 15–year period ‘may be considered as relevant when a continuity of skills,
knowledge, and processes can be established between such work and the [claimant’s]
more recent occupations.’” Pickner v. Sullivan, 985 F.2d 401, 403 (8th Cir. 1993)
(stating that work performed prior to 15 years before adjudication is “ordinarily” not
considered relevant because of the gradual change in job skills over time) (quoting SSR
82–62, at 401 (effective Aug. 20, 1980)).
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Claimant reported that he worked as a telephone solicitor from March 1999 to
August 1999.1 See AR 44, 276. The hearing was held December 18, 2013, and the ALJ
issued her decision on August 5, 2014. AR 30, 72. There is no place in the record, and
claimant does not assert in his brief, an exact date when claimant ended his employment
with Parsons as a telephone solicitor. To meet the 15 year recency requirement, claimant
would have to have worked as a telephone solicitor after August 5, 1999. Claimant must
carry the burden at step four to prove that he could not return to his past work and here
that would require claimant to prove that he terminated his employment before August 5,
1999, and was, therefore, not past relevant work that could be considered. Although it
is a close question, the Court finds it was reasonable for the ALJ to find, and there was
substantial evidence on the record to support, that claimant worked as a telephone
solicitor within 15 years of the ALJ’s decision.
Claimant also argues that the ALJ did not fully develop the record as to claimant’s
past relevant work and argues that claimant did not have the requisite ability to perform
the job of telephone solicitor and never performed the work adequately. “[T]he ALJ has
a duty to fully investigate and make explicit findings as to the physical and mental
demands of a claimant’s past relevant work and to compare that with what the claimant
herself is capable of doing before he determines that she is able to perform her past
relevant work.” Nimick v. Sec’y of Health & Human Servs., 887 F.2d 864, 866 (8th Cir.
1989) (emphasis original).
The ALJ found that claimant performed the job of telephone solicitor “long enough
to meet the longevity required for this semiskilled job.” AR 29. There exists no evidence
on the record to suggest, and claimant’s attorney never addresses at the time of the
1

The Court notes that in claimant’s report of his past relevant work, claimant misstated the dates
he worked for Parsons as a telephone solicitor, stating the year he worked as 2009 rather than
1999. However, claimant testified at the hearing that he worked as a telephone solicitor for five
months, which is consistent with the time range of March to August reported by claimant. AR
276. Claimant also seems to accept August 1999 as the applicable end date of employment.
Doc. 14, at 15.

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hearing, that claimant failed to possess the physical and mental skills necessary to perform
the job or that he never learned to perform the job at an acceptable level. The only
evidence on the record that claimant did not perform the “average performance” for the
job is his own subjective testimony stating: “Well, I found out I’m really not a
salesperson. I just don’t have the skill. And I don’t have – I guess I just don’t have the
ability to try to talk people into buying something they don’t really want to buy.” AR
44. The ALJ interpreted this statement as reflecting a lack of desire to do this type of
work, rather than claimant being unable to perform the job adequately. AR 29. ALJs
are in the best position to determine a claimant’s credibility, because they are present
during the testimony of claimant and can observe claimant’s demeanor and personal
appearance. See Steed v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008) (citing Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir.2006)). See also Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational
interpretation, it is the ALJ’s conclusion that must be upheld.”); Bailey v. Astrue, No.
1:09–CV–43, 2009 WL 5176156, *15 (Dec. 21, 2009) (finding an ALJ did not err in his
credibility finding where he considered the claimant’s statement that he did not desire to
work, in conjunction with the objective medical evidence and claimant’s work history).
D. ALJ’s determination as to claimant’s visual limitations
Claimant argues that the ALJ erred because the RFC determination that claimant
had only “limited peripheral vision,” is not supported by substantial evidence. Doc. 14,
at 3-4. The Commissioner argues that the burden was on claimant to prove the severity
of his visual limitations and he did not prove they were more severe than found by the
ALJ. Doc. 15, at 7. The Commissioner further argues that any deficiency in the ALJ’s
opinion, when supported by substantial evidence, is harmless error. Doc. 15, at 9.
A claimant’s “residual functional capacity is the most [claimant] can still do despite
[claimant’s] limitations.” 20 C.F.R. § 404.1545(a)(1). The RFC also takes into account
all the relevant evidence in the record including both severe and non-severe impairments,
but it is claimant’s responsibility to develop the record as to claimant’s RFC. 20 C.F.R.
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§ 404.1545(a)(1)-(2). The RFC is a medical question and must be supported by some
medical evidence. KKC ex rel. Stoner v. Colvin, 818 F.3d 364, 378 (8th Cir. 2016)
(citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)).
The Court finds that the ALJ’s determination of claimant’s RFC is supported by
substantial evidence on the record. The opinion of Dr. Muller, an eye specialist, who
saw claimant June 20, 2012, stated claimant had fairly good visual acuity, his retinal
problems were stabilized, and only listed decreased peripheral vision as a limitation. AR
496-97. This is consistent with the determination of Dr. Kuhnlein who rated claimant’s
visual acuity as 20/20 in the right eye and 20/25 in the left eye, and opined no visual
restrictions. AR 76, 78.
On October 9, 2013, claimant stated that his blurriness was gone after receiving
treatment and denied new floaters, flashes, or pain, indicating that the treatment he was
receiving at the University of Iowa was working. AR 563. Furthermore, claimant stated
to Dr. Russel that after receiving treatment for his vision problems, that his vision had
improved. AR 563. At later appointments, claimant reports a throbbing pain in his eye,
but he received additional treatment, and then reported doing well and had no new
complaints at the next appointment, despite his floaters and dysphotopsia. AR 578.
Several months later, after continuing treatment, in April 2014, claimant reported his
vision was stable, he had no new flashes of light or floaters, no metamorphopsia, no new
photophobia, and no other visual complaints.
The ALJ also addressed claimant’s diabetes, obesity, cardiac stent, and
hypertension, as well as left leg and ankle pain. AR 22-25. With regard to claimant’s
obesity, the ALJ considered the effect claimant’s obesity had on his other impairments.
AR 25. The ALJ also found, based on the evidence in the record, that claimant’s cardiac
impairments and his diabetes were stable. AR 23.
The ALJ also considered claimant’s statements as to seeing floaters and “sparkly”
rings in his vision, but the ALJ found that claimant’s reported daily activities undermined
claimant’s alleged severity of these problems. Claimant did not stop driving due to his
22

visual impairment, drove himself to the hearing with the ALJ, and even reported that he
continued to ride a motorcycle after applying for disability. AR 293, 329. Additionally,
he continued to drive a semi for over four years after his visual problems allegedly began
in 2007, until he quit his position after an altercation with his supervisor. AR 22, 62.
The ALJ noted in her decision that claimant’s reported limitations were also undermined
by his reports of his ability to complete his personal care and household chores with no
difficulty, performing yard work such as mowing, grocery shopping, taking care of
financial matters, and caring for his grandchildren. AR 27. Claimant also reported
spending time on the computer researching new “tricks” and reading on his tablet, which
undermined his statements about having difficulty looking at screens. AR 26, 47, 329.
The Court finds that the ALJ’s decision is supported by substantial evidence on the
record.

VIII. CONCLUSION
For the reasons set forth herein, and without minimizing the seriousness of
plaintiff’s impairments, the Court affirms the Commissioner’s determination that
claimant was not disabled. Judgment shall be entered against plaintiff and in favor of the
Commissioner.
IT IS SO ORDERED this 8th day of March, 2017.

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

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