Kielly v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER re 3 Complaint filed by Dawn Y Kielly. The Court affirms the decision of the ALJ. Judgment shall be entered in favor or the Commissioner and against claimant. Signed by Magistrate Judge CJ Williams on 3/10/2017. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
DAWN Y. KIELLY,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND
The plaintiff, Dawn Y. Kielly (claimant), seeks judicial review of a final decision
of the Commissioner of Social Security (Commissioner) denying claimant’s application
for disability insurance benefits (DIB) and supplemental security income (SSI) under Title
II and XVI of the Social Security Act (Act), 42 U.S.C. §§ 405(g), 423, 1383(c)(3). For
the reasons that follow, the Court affirms the Commissioner’s decision.
In addition to the record, the Court also relies on the parties’ Joint Statement of
Facts (Doc. 11). Claimant was born in 1966. AR 48. She was enrolled in Kirkwood
Community College where she studied computer sciences, but never completed her
schooling, nor obtained a degree. AR 48-49. Claimant has past work as a taxicab
dispatcher at Yellow Cab and taking incoming calls for Medicare and Medicaid and other
work. AR 13, 26, 50-51, 417. Claimant’s applications for DIB (filed October 30, 2012)
and SSI (filed November 19, 2012) had a protective filing date of October 25, 2012. AR
10, 309-324, 502, and Doc. 11, at 2. Claimant alleged a disability onset date of October
17, 2011. AR 10, 62. She contends she is disabled due to the following impairments:
osteoarthritis of the knees, left shoulder, and spine; obesity; a history of a lumbar fusion
with degenerative disc disease of the lumbar and the cervical spine; a partial thickness
tear of the Achilles tendon; a major depressive disorder; and a generalized anxiety
disorder/post-traumatic stress disorder; asthma/allergies; excised masses; fatty liver;
obstructive sleep apnea with restless leg syndrome; fibromyalgia.
Commissioner denied her claims on May 1, 2013, and denied review on October 4, 2013.
AR 10, 172-80, 185-197. She then requested a hearing before an Administrative Law
Judge (ALJ) on October 17, 2013. AR 10, 198-99.
The ALJ, Tela L. Gatewood, conducted a video hearing on December 29, 2014,
at which claimant, her attorney, and vocational expert, Vanessa May, testified. AR 43.
On August 6, 2015, the ALJ issued a decision denying claimant’s claims. AR 7-35.
Claimant sought review from the Appeals Council, which denied her request on
December 23, 2015. AR 1. The ALJ’s decision thus became the final decision of the
Commissioner. AR 1.
Claimant filed a complaint (Doc. 32) with this Court on February 19, 2016,
seeking review of the ALJ’s decision. On April 15, 2016, with the consent of the
At the hearing, claimant’s counsel also alleged that claimant had chronic pain, epileptic seizures
with memory loss, and spondylolisthesis. AR 46.
Claimant asserted three arguments in her complaint that were wholly absent from her brief.
See Docs. 3 and 12. These arguments included: the ALJ did not properly assess claimant’s
fibromyalgia, the ALJ posed an inaccurate hypothetical question to the vocational expert, and
that the ALJ improperly substituted her own opinion for the medical opinion of the “examining
source,” (claimant failed to specify which examining source is meant; the prior page referenced
the opinion of the examining psychological consultant, Dr. Barbara Lips). Doc. 3, at 3. Overall,
the complaint made no reference to any citations or authority for these three arguments. As
claimant failed to brief these arguments, the Court considers them waived and will not address
parties (Doc. 7), the Honorable Linda R. Reade transferred this case to a United States
magistrate judge for final disposition and entry of judgment. The parties have briefed
the issues, and the matter is now fully submitted.
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
A disability is defined as “the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An
individual has a disability when, due to his physical or mental impairments, he “is not
only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists . . . in
significant numbers either in the region where such individual lives or in several regions
of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). If the claimant is able to
do work which exists in the national economy but is unemployed because of inability to
get work, lack of opportunities in the local area, economic conditions, employer hiring
practices, or other factors, the ALJ will still find the claimant not disabled.
To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows the five-step sequential evaluation process outlined in the
Kirby v. Astrue, 500 F.3d 705, 707–08 (8th Cir. 2007).
Commissioner will consider a claimant’s work activity. If the claimant is engaged in
them. See LR7a (“The term ‘motion,’ as used in the Local Rules, includes the following: . . .
2. All other applications or requests for court action); see also LR7d (“For every motion, the
moving party must prepare a brief containing a statement of grounds for the motion and citations
to the authorities upon which the moving party relies . . . .”).
substantial gainful activity, then the claimant is not disabled. “Substantial” work activity
involves physical or mental activities. “Gainful” activity is work done for pay or profit,
even if the claimant did not ultimately receive pay or profit.
Second, if the claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of the claimant’s physical and mental impairments.
If the impairments are not severe, then the claimant is not disabled. An impairment is
not severe if it does not significantly limit a claimant’s physical or mental ability to
perform basic work activities. Kirby, 500 F.3d at 707.
The ability to do basic work activities means the ability and aptitude necessary to
perform most jobs. These include: (1) physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for
seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding appropriately to supervision, coworkers, and usual work situations; and (6) dealing with changes in a routine work
setting. Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
Third, if the claimant has a severe impairment, then the Commissioner will
determine the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled regardless of age, education, and work experience.
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) and the demands of his past relevant work.
If the claimant can still do his past relevant work, then he is considered not disabled.
Past relevant work is any work the claimant performed within the past fifteen years of
his application that was substantial gainful activity and lasted long enough for the claimant
to learn how to do it. “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). The RFC is based on all
relevant medical and other evidence. The claimant is responsible for providing the
evidence the Commissioner will use to determine the RFC. Id. If a claimant retains
enough RFC to perform past relevant work, then the claimant is not disabled.
Fifth, if the claimant’s RFC, as determined in Step Four, will not allow the
claimant to perform past relevant work, then the burden shifts to the Commissioner to
show there is other work the claimant can do given the claimant’s RFC, age, education,
and work experience. The Commissioner must show not only that the claimant’s RFC
will allow him or her to make the adjustment to other work, but also that other work
exists in significant numbers in the national economy. Eichelberger v. Barnhart, 390
F.3d 584, 591 (8th Cir. 2004). If the claimant can make the adjustment, then the
Commissioner will find the claimant not disabled. At Step Five, the Commissioner has
the responsibility of developing the claimant’s complete medical history before making a
determination about the existence of a disability. The burden of persuasion to prove
disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
THE ALJ’S FINDINGS
The ALJ made the following findings at each step.
At Step One, evaluating claimant’s work attempts after her alleged onset date, the
ALJ found that claimant had not engaged in substantial gainful activity since October 17,
2011 (the alleged onset date). AR 13-14.
At Step Two, ALJ found that claimant had severe impairments of osteoarthritis in
her knees, left shoulder, and spine; obesity; a history of a lumbar fusion with degenerative
disc of the lumbar and cervical spine; a partial thickness tear of the Achilles tendon; a
major depressive disorder; and a generalized anxiety disorder/post-traumatic stress
The ALJ found the following impairments were non-severe:
asthma/allergies; excised masses; fatty liver; and obstructive sleep apnea with restless leg
syndrome. AR 14.
At Step Three, the ALJ found that none of the claimant’s impairment(s) equaled a
presumptively disabling impairment listed in the relevant regulations. AR 14.
At Step Four, ALJ assessed claimant’s residual functional capacity to be as
[Claimant can] perform a range of light and sedentary work as defined in
20 C.F.R. § 404.1567(a) and (b) and § 416.967(a) and (b). The claimant
can lift and/or carry and push and/or pull twenty pounds occasionally, ten
pounds frequently. She can stand and/or walk for a total of two hours in a
workday. She can sit, with normal breaks, for a total of six hours in a
workday. The claimant can balance, crouch, and climb ramps or stairs
occasionally. She cannot kneel, crouch, crawl, or climb ladders, ropes, or
scaffolds. She cannot work at unprotected heights or around hazards. The
claimant cannot work in environments with concentrated exposure to
temperature extremes or high humidity. The claimant can perform simple
and some limited complex work in a routine work environment. She can
work with co-workers and supervisors minimally. She cannot work with
AR 18. Also, the ALJ determined that claimant cannot perform past work. AR 26.
Finally, at Step Five, the ALJ found that an individual with claimant’s age,
education, and RFC could perform the following jobs—document preparer, ticket
counter, and sorter—that exist in significant numbers in the national economy. AR 28.
THE SUBSTANTIAL EVIDENCE STANDARD
The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
“Substantial evidence is less than a preponderance, but enough that a reasonable mind
might accept as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The Eighth
Circuit Court of Appeals explains the standard as “something less than the weight of the
evidence and [that] allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the [Commissioner] may decide to grant
or deny benefits without being subject to reversal on appeal.” Culbertson v. Shalala, 30
F.3d 934, 939 (8th Cir. 1994) (internal quotation omitted).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but we do not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (internal citation
omitted). The court considers both evidence which supports the Commissioner’s decision
and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir.
The court must “search the record for evidence contradicting the
[Commissioner’s] decision and give that evidence appropriate weight when determining
whether the overall evidence in support is substantial.” Baldwin v. Barnhart, 349 F.3d
549, 555 (8th Cir. 2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (internal citation omitted) (“[A]n administrative decision is not subject to
reversal simply because some evidence may support the opposite conclusion.”).
Ultimately, the Court finds the ALJ did not legally err and her decision was
supported by substantial evidence on the record as a whole. The Court now turns to
address claimant’s specific objections about the ALJ’s decision. Claimant asserts that the
ALJ’s decision is flawed for the following three reasons: (1) the ALJ improperly assessed
claimant’s RFC; (2) the ALJ improperly discredited claimant’s subjective complaints;
and (3) the ALJ failed to properly consider claimant’s obesity. Doc. 12. Claimant seeks
the reversal of the ALJ’s decision and that the matter be remanded back to the ALJ so
that the ALJ can further develop the record and consider the claims anew. Doc. 12, at
A. The ALJ’s residual functioning capacity assessment was proper and
supported by substantial evidence on the record
Claimant alleges that the ALJ improperly assessed her RFC.
claimant alleges that the record was not fully developed as there were “no treating source
statements” or “physical consultative evaluations.” Doc. 12, at 3-4. Thus, this case is
similar to Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000), which the claimant
summarizes as standing for the proposition that “it was improper for the ALJ to rely on
the opinions of reviewing physicians alone.” Id. at 3. Also, claimant argues, to the best
understanding of the Court, that the ALJ’s reliance on the state agency medical
consultants was improper given the time lapse between their review and the date of the
ALJ’s decision. Id. at 4.
On the other hand, the Commissioner argues that the ALJ fully developed the
record. Doc. 13, at 5. And that Nevland is distinguishable from the present matter as
the ALJ considered “treatment notes from numerous medical sources, as well as
plaintiff’s activities and reported abilities.” Doc. 13, at 4-6. Overall, the Commissioner
maintains that substantial evidence on the record supports the ALJ’s RFC assessment.
The Court finds substantial evidence supports the RFC assessment by the ALJ. It
is well-established that the ALJ has a duty to fully develop the record. See Snead v.
Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (citations omitted) (“Well-settled precedent
confirms that the ALJ bears a responsibility to develop the record fairly and fully,
independent of the claimant’s burden to press his case.”). Also, the Eighth Circuit Court
of Appeals has stated that “[t]he ALJ’s duty to develop the record extends even to cases
. . . where an attorney represented the claimant at the administrative hearing . . . . The
ALJ possesses no interest in denying benefits and must act neutrally in developing the
record.” Id. (internal citations omitted). The Court finds that the record was fully
developed here. Relevant medical and other evidence on the record support all portions
of the ALJ’s RFC assessment. The ALJ found that claimant was able to do a range of
light and sedentary work; could lift, pull, carry, and/or push twenty pounds occasionally
and ten pounds frequently; could stand and/or walk for two hours in a workday; could
sit for six hours in a workday with normal breaks; could crouch, crawl, climb
stairs/ramps occasionally; can never climb ropes, scaffolds, or ladders; can never work
in high humidity, extreme temperatures, near hazards, or at unprotected heights; claimant
can perform simple tasks and some limited complex work in a routine work environment;
can minimally work with supervisors and co-workers; and can never work with the
public. AR 18. Again, the RFC is a medical question of what the claimant is still able
to do given her mental and/or physical limitations. Lewis, 353 F.3d at 646 (8th Cir.
2003). The claimant has the burden to “provid[e] the evidence the Commissioner will
use to determine the RFC.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). All relevant
medical and other evidence is used to determine the RFC. Id.
In regard to claimant’s physical impairments, the evidence from medical sources
supports the RFC assessment. See AR 712-16 (clinic notes signed by Laurence S. Krain,
M.D., stated: “Lab workup: lab results were “basically negative . . . Unremarkable head
CT from 11/06/2011. MRI from 11/07/2011 also normal, a single nonspecific tiny focus
. . . On examination she is neurologically intact.”); AR 959-60 (clinic note from
September 2014 stated that claimant’s “EEG here was normal and so was her brain MRI
epilepsy protocol”); AR 777 & 786 (University of Iowa Hospitals and Clinic treatment
notes indicate that claimant had no spinal tenderness and a full range of motion in her
spine without pain in February and March of 2012); AR 852 (March 2013 clinic note
from University of Iowa Hospitals and Clinics stated that claimant’s X-ray showed no
arthritis and normal ankle joint space); AR 139-40 (Matthew Byrnes, D.O., nonexamining state consultant, noted that “Ankles: 8/8/13 PCC 8/26/13 OS visits for
bilateral ankle pain stirrup brace was worthless, exam noted normal gait & motor
(decreased dorsal foot sensory-previously normal per neurology), and X-rays noted
‘minimal’ spurring.”); AR 866-67 (clinic note from April 2013 stated claimant’s
orientation, speech, and language was normal and her strength in her upper and lower
extremities (left and right) was 5/5 for proximal and 5/5 for distal, and); AR 1003
(treatment note from October 2014 stated claimant’s gait and stance was normal and no
involuntary movements were witnessed); AR 988 (McFarland clinic note from September
2014 stated that claimant’s knees were normally aligned and her knees had mild
tricompartmental osteoarthritis). Claimant’s testimony supports her RFC as well. See
AR 55 (claimant testified to reading and watching TV); AR 431 (claimant prepares frozen
or microwave meals for herself once or twice a day); AR 432 (claimant is able to handle
a savings account, use money orders/checkbook, count change, and can pay her bills).
In regard to claimant’s mental impairments, Dr. Lips opined that claimant was
unlikely to “interact successful with supervisors, coworkers, and the public.” AR 902.
Such limitations were embodied in the RFC (minimal interactions with supervisors and
co-workers and no interaction with the public). Dr. Lips also stated that claimant would
likely be “over-stressed if required to be responsible for making independent decisions
in the workplace.” Id. Again, such limitations were embodied in the RFC (simple tasks
with limited complex work). Similarly, state agency’s reviewing psychologist, Jennifer
Wigton, opined that claimant may “struggle with concentration and pace according to the
variability of her mood, but is capable of performing simple, repetitive tasks in a routine
environment, with minimal interactions with others, when motivated to do so.” AR 142.
Other evidence on the record also supported the mental RFC assessment. See AR 1003
(October 2014 treatment note signed by a registered nurse practitioner stated that claimant
could “concentrate fully when wanted with no difficulty,” had intact judgment, was not
easily distracted, intact remote and recent memory, normal speech, orientated to time
and place, depressed mood); see also AR 931 (therapy note from December of 2013 that
claimant stated her depression was better managed with medication). Overall, substantial
evidence on the record supports the ALJ’s assessment of claimant’s RFC.
The Court finds the present case distinguishable from Nevland.
Commissioner contends that “[t]his is not a case where there was no medical opinion
from an examining or treating doctor.” Doc. 13, at 5. The Court agrees. The Eighth
Circuit Court of Appeals in Nevland, reversed a denial of benefits and remanded the case
for the following reasons:
In spite of the numerous treatment notes discussed above, not one of
[claimant]’s doctors] was asked to comment on his ability to function in the
workplace . . . . In the case at bar, there is no medical evidence about
how [claimant’s] impairments affect his ability to function now. The ALJ
relied on the opinions of non-treating, non-examining physicians who
reviewed the reports of the treating physicians to form an opinion of
[claimant]’s RFC . . . . In our opinion, the ALJ should have sought such
an opinion from [claimant’s] treating physicians or, in the alternative,
ordered consultative examinations, including psychiatric and/or
psychological evaluations to assess [claimant]’s mental and physical
residual functional capacity.
204 F.3d at 858 (emphasis in original). The absence of statements of treating and
examining sources, however, does not automatically mandate remand. See Mann v.
Colvin, 100 F. Supp. 3d 710, 722 (N.D. Iowa 2015) (“Even without an opinion from a
treating or examining source, the ALJ’s decision may be affirmed if there is other medical
evidence demonstrating the claimant’s ability to function in the workplace.”); see also
Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995) (finding claimant’s RFC
assessment was proper where the ALJ did not “rely solely on the reviewing physicians
in this case.”). Here, the ALJ did not just rely on the statements of reviewing physicians.
Here, a psychological evaluation was ordered for claimant to further develop the record
on her mental impairments. Claimant failed to appear twice for this evaluation. AR 21.
Ultimately, an evaluation was performed. See AR 899-902 (evaluation performed by
Barbara Lips, Ph.D., on September 24, 2013). The evaluation diagnosed claimant with
“generalized anxiety disorder; depressive disorder, NOS [not otherwise specified];
personal trait features; GAF of 55.” AR 902. Overall, the psychological evaluation
found claimant was “coherent, logical, adequately goal-directed . . . no indication of any
formal thought disorder . . . [s]he appeared to be functioning in the average range of
general intellectual ability.” AR 901. Regarding work-related activities, Dr. Lips found
claimant was “able to remember and understand simple instructions, procedures, and
locations.” AR 902. Also, claimant had fair judgment. Id. Overall, the ALJ gave Dr.
Lips’ opinion little weight as it was “based largely on the claimant’s self-serving
allegations” to Dr. Lips which were inconsistent with the other medical evidence. AR
Yet, here, the record was fully developed on the issue of claimant’s mental
impairments by both Dr. Lips’ consultative examination from September 2013 and the
review of state agency’s reviewing psychologist, Jennifer Wigton, Ph.D., in October
2013 (AR 142). Indeed, the ALJ’s opinion explicitly cited both opinions, as well as that
of state agency’s reviewing mental health consultant, Scott Shafer, Ph.D., (AR 668,
preceding the alleged onset date) for a thorough analysis. Regarding claimant’s physical
impairments and her ability to function in the workplace, substantial evidence in the
record supporting the ALJ’s findings is extensively discussed above. Thus, here, unlike
in the Nevland case, the ALJ had medical evidence of claimant’s mental and physical
impairments for the RFC assessment.
Claimant also argues that “[i]n light of the complexity of this case and the lapse
of time from the non-examining state agency medical consultants[’] review and the ALJ’s
decision, the Court should reverse and remand the ALJ’s decision for further
development of the record.” Doc. 12, at 4. Essentially, claimant argues that it was
improper for the ALJ to rely on the state agency consultants’ reviews as these were so
lapsed that they were outdated. Claimant points to the approximately 22 month lapse in
time (between October 2013—date of most recent state consultant’s review, and
December 2015—date of ALJ’s written decision).
Claimant reasons that because
claimant’s extreme obesity may exacerbate her other medical conditions, it was improper
for the ALJ to rely on such dated medical opinions. The Court disagrees. Mere lapse
of time, here 22 months, did not invalidate the state agency consultants’ medical opinions
on the record. See Kohn v. Colvin, No. C13-4003-MWB, 2013 WL 5375415, at *13 n.5
(N.D. Iowa Sept. 26, 2013), report and recommendation adopted, No. C 13-4003-MWB,
2013 WL 6858433 (N.D. Iowa Dec. 30, 2013) (quoting Chandler v. Comm’r of Soc.
Sec., 667 F.3d 356, 361 (3d Cir. 2011)) (“‘[B]ecause state agency review precedes ALJ
review, there is always some time lapse between the consultant’s report and the ALJ
hearing and decision. The Social Security regulations impose no limit on how much time
may pass between a report and the ALJ’s decision in reliance on it.’”). In this case, the
ALJ explicitly addressed this issue in her opinion.
The ALJ wrote that she gave
significant weight to the state agency’s non-examining physicians and to the state agency’s
reviewing psychologists/mental health consultants, noting that “to the extent that the
above residual functional capacity varied from the opinions of the State agency’s
consultants, this was attributable to new evidence now in the record (including testimony)
that was not available to those consultants and/or to further consideration . . . .” AR 25.
Thus, the ALJ reviewed the state agency’s consultants and the other evidence on the
record at the time of her hearing, and determined that the opinions of the state agency
consultants deserved significant weight and were consistent with the other evidence in the
record. There is ample evidence in her decision that the ALJ considered medical and
other evidence dated after October 2013. See e.g., AR 21-22 (Exhibit C29F—medical
records from July 2014 to September 2014 from the McFarland Clinic; Exhibit C28F—
psychological evaluation records and progress notes from Abbe Center for Community
Mental Health from November 2013 to December 2013; and Exhibit C30F—medical
records from Center Associates dated July 2014 to October 2014). Overall, the Court
finds that the ALJ met her duty to fully develop the record.
B. The ALJ properly assessed the Polaski factors to determine claimant’s
Claimant alleges that the ALJ erred in discrediting the claimant’s subjective
complaints of pain. Doc. 12, at 5. Specifically, claimant argues that the ALJ failed to
identify the inconsistencies in the record that discredited claimant’s complaints.
The Court finds the ALJ correctly considered the relevant factors in determining
claimant’s credibility. An ALJ must consider the “claimant’s prior work record, and
observations by third parties and treating and examining physicians relating to such
matters as: (1) claimant’s daily activities; (2) duration, frequency and intensity of the
pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects
of medication; and (5) functional restrictions.” Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir. 1984).
An “ALJ was not required to discuss methodically each Polaski
consideration, so long as he acknowledged and examined those considerations before
discounting [claimant’s] subjective complaints.” Lowe v. Apfel, 226 F.3d 969, 972 (8th
Cir. 2000) (internal citation omitted). If the ALJ gives a good reason for discrediting a
claimant’s credibility, then the court will defer to the ALJ’s judgment “even if every
factor is not discussed in depth.” Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir.
The Court also notes that “[a]lthough the ALJ may disbelieve a claimant’s
allegations of pain, credibility determinations must be supported by substantial evidence.”
Jeffery v. Sec’y of Health & Human Servs., 849 F.2d 1129, 1132 (8th Cir. 1988) (internal
citation omitted). “Moreover, the ALJ must make express credibility determinations and
set forth the inconsistencies in the record that lead him to reject the claimant’s
complaints.” Id. “Where objective evidence does not fully support the degree of severity
in a claimant’s subjective complaints of pain, the ALJ must consider all evidence relevant
to those complaints.” Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001)
(internal citation omitted). In evaluating a claimant’s subjective complaints of pain, an
ALJ may rely on a combination of his personal observations and a review of the record
to reject such complaints. Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008). An ALJ
may not, however, solely rely on his personal observations to reject such claims.
Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003) (citing Polaski) (“Subjective
complaints can be discounted [by the ALJ], however, where inconsistencies appear in the
record as a whole.”).
The ALJ wrote that the “claimant’s statements concerning the intensity,
persistence, and limiting effects of these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity assessment.” AR 23. The ALJ
discussed specific instances where claimant’s statements were inconsistent, and noted
claimant’s noncompliance with prescribed medication and treatment plans, and the
minimal mental health treatment sought by claimant (beginning October 2013). AR 2316
24. The ALJ also noted that her personal impressions from the live hearing of the
claimant were inconsistent with claimant’s subjective complaints.
claimant’s alleged deficient memory).
Overall, substantial evidence on the record supports the ALJ’s decision to find
claimant less than fully credible. As the ALJ noted, claimant has repeatedly failed to
follow prescribed medication regimes and medical advice. See, e.g., AR 899 (Dr. Lips
Cyclobenzaprine, and Gabapentin. Claimant explained by saying that she needed to find
transportation to the free clinic.); AR 925 (claimant was not using her continuous positive
airway pressure machine despite the University of Iowa Hospitals and Clinics finding that
the machine improved her sleep); AR 925 (claimant had resumed taking prescription
medication again after she stopped on her own in the summer of 2014); and AR 64 (at
the hearing, claimant admitted to missing evening doses of Keppra medication). Claimant
did not follow medical advice to reduce calories and increase exercise. AR 20 (citing
AR 783, clinic notes from March and June of 2012: “[e]ncouraged decreased caloric
intake and increased exercise to promote weight loss as I do believe the weight is
increasing the stress on her back”). See Holley v. Massanari, 253 F.3d 1088, 1092 (8th
Cir. 2001) (finding ALJ properly considered claimant’s noncompliance with her doctor’s
instructions in assessing claimant’s credibility); Guilliams v. Barnhart, 393 F.3d 798,
802 (8th Cir. 2005) (“A failure to follow a recommended course of treatment also weighs
against a claimant’s credibility.”);
Fickler v. Colvin, No. 8:11CV440, 2013 WL
1090405, at *27 (D. Neb. Mar. 15, 2013) (failure to follow medical professional’s advice
to lose weight “weighs against a claimant’s credibility.”). The ALJ also pointed out
other inconsistences. The ALJ pointed out inconsistencies between claimant’s disability
report, her earning history, and her testimony at the hearing. AR 23. See AR 417
(claimant described her job history as press operator from 2000 to 2001 and telemarketer
off-and-on from 1997 to 2008), which was inconsistent with her earnings report (AR 342349), and her hearing testimony regarding work history (AR 23, 147). At the hearing,
claimant testified that she quit her job as a taxi dispatcher in June 2013 (AR 49); made
calls for the muscular dystrophy association (MDA) from May to November of 2011 (AR
51), prior to MDA, she took incoming calls for Medicare and Medicaid where she was
let go (AR 50-51). Preceding her alleged disability onset date of October 17, 2011,
claimant worked in data input for the postal service (2005-2006), Hy-Vee, Verizon,
Walmart, Victor Plastics, Jerry’s Video and Arcade Center, etc. AR 52-55. Also,
claimant’s work in 2013 as a caller, and in 2014 as a taxi dispatcher, detracts from her
credibility of claiming total disability, although such work was not found to be substantial
gainful activity. Samons v. Astrue, 497 F.3d 813, 80 (8th Cir. 2007) (in a credibility
determination, ALJ properly considered claimant’s work as a housekeeper for seven
hours per week as it was inconsistent with claimant’s testimony on the record). Also,
the ALJ noted that claimant sought minimal mental health treatment in contrast to her
complaints. AR 21 (“The objective medical evidence of record revealed no mental health
treatment prior to late in 2013, despite the claimant’s reports of anxiety and nervousness
in connection with her disability application.”). See Dukes v. Barnhart, 436 F.3d 923,
928 (8th Cir. 2006) (upholding ALJ’s credibility finding where the ALJ noted the absence
of hospitalizations and limited treatment of claimant’s symptoms). From these mentioned
inconsistencies, and others discussed in the ALJ’s decision, and upon the Court’s
thorough review of the record, substantial evidence on the record supports the ALJ’s
C. The ALJ did properly consider claimant’s obesity
Claimant alleges that the ALJ failed to “adequately address [claimant’s] extreme
obesity” and failed to properly apply Social Security Ruling 02-1p. Doc. 12, at 8.
Further, claimant argues that her obesity is especially severe. Doc. 12, at 9 (“[Claimant]
was extremely obese . . . [her] BMI generally has been in the 54-55 range. . . . Her
BMI easily passes the definition of extreme obesity. . . . The ALJ should have considered
the claimant’s musculoskeletal problems . . .”). Essentially, claimant alleges that the
ALJ failed to consider claimant’s extreme obesity in the aggregate of her other
An ALJ must consider claimant’s obesity when evaluating his or her disability.
SSR 02-1P, 2002 WL 34686281 (Sept. 12, 2002). For adult men and women, obesity is
defined as having a Body Mass Index (BMI) of 30 or over. Id. Generally, a physician’s
opinion will establish obesity. Id. A claimant is considered obese “as long as his or her
weight or BMI shows essentially a consistent pattern of obesity.” Id. For an adult
claimant, the ALJ is instructed to consider obesity at the following stages of the sequential
evaluation process: whether the claimant has medically determinable impairments; if any
of the impairments are severe; if any of claimant’s severe impairments are disabling
impairments listed in the regulations; and if claimant’s impairments allow him or her to
do past relevant work or work that exists in the national economy in significant numbers.
Here, the ALJ repeatedly considered the claimant’s obesity through her analysis.
The ALJ found that claimant had a severe impairment of obesity. AR 14. Considering
Social Security Ruling 02-1p for obesity, the ALJ wrote the following:
The claimant’s obesity was evaluated under Social Security Ruling 02-1p,
and her obesity was not of such a level that it resulted in an inability to
ambulate [walk/move]. Her gait was normal for speed, stability, and
safety; she did not require any assistive devices. The claimant’s medically
determinable and diagnosed obesity does not impose substantial limitations
with mobility and stamina or significantly exacerbate the claimant’s other
medical conditions. There is no credible evidence of severe, chronic pain
or significant range of motion limitation of a weight-bearing joint or the
lumbosacral spine, hypertension with persistently elevated diastolic blood
pressure of 100 or more, chronic venous insufficiency, congestive heart
failure, or severe respiratory impairment (Social Security Ruling 02-1p).
There is no report of shortness of breath, cardiovascular, or musculoskeletal
body system complications caused by obesity. The claimant was
encouraged to exercise and diet, which she has not done.
Administrative Law Judge finds the claimant’s obesity to be severe, but the
signs, symptoms, and laboratory findings do not establish that her obesity
has increased in severity coexisting or related impairments to the extent that
the combination of impairments meets the requirements of a listed
impairment. Nevertheless, the Administrative Law Judge fully considered
the claimant’s obesity when reaching the findings herein, and the limitations
resulting from the claimant’s obesity are reflected in the below residual
functional capacity assessment.
AR 15. Substantial evidence in the record as a whole supports the ALJ’s findings. See
AR 716 (motor skills described as normal tone and strength, dated January 2012); AR
697 (normal range of motion dated October 2012); AR 814 (June 2012 clinic notes state
“[e]qual and strong strength of both upper and lower extremities bilaterally.”); AR 853
(clinic notes indicate that claimant was prescribed orthotics to help stabilize her ankle and
to “help give her some pain relief while she is walking or standing.”; AR 139-40 (state
consultant noted that claimant had normal gait and motor according to August 2013
medical records). See also Heino v. Astrue, 578 F.3d 873, 881-82 (8th Cir. 2009)
(“Because the ALJ specifically took [claimant’s] obesity into account in his evaluation,
we will not reverse that decision.”); Brown ex rel. Williams v. Barnhart, 388 F.3d 1150,
1153 (8th Cir. 2004)(“The ALJ specifically referred to [claimant’s] obesity in evaluating
his claim, and having reviewed the record as a whole we think that he adequately took
that condition into account when denying [claimant] benefits.”).
Also, claimant argues “[t]he ALJ’s focus seemed to be on the doctors
recommending [claimant] lose weight.” Doc. 12, at 10. Claimant insinuates the ALJ
was prejudice against the claimant for her failure to follow doctors’ recommendations
and lose weight. Id. Such accusation seems inappropriate as there is nothing in the
ALJ’s decision, nor in the transcript, that remotely supports such an allegation. Rather,
the decision clearly reflects a well-written and well-considered ALJ decision that
extensively examined SSR 02-1p, including how her obesity affected her musculoskeletal
Lastly, claimant also brings attention to typos present in the ALJ’s decision. See
AR 21 “claimant was not a candidate for obesity.” While regrettable, this typo constitutes
a mere deficiency in the opinion writing and did not undermine the substantial evidence
on the record supporting the ALJ’s decision. See Hepp v. Astrue, 511 F.3d 798, 806
(8th Cir. 2008) (“We have held that an ‘arguable deficiency in opinion-writing technique’
does not require us to set aside an administrative finding when that deficiency had no
bearing on the outcome.”) (internal quotation marks and citation omitted). Furthermore,
claimant bears the burden to prove that an ALJ’s error was not harmless. See Van Vickle
v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008) (“There is no indication that the ALJ would
have decided differently . . . and any error by the ALJ was therefore harmless.”); see
also Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (“To show an error was not
harmless, [claimant] must provide some indication that the ALJ would have decided
differently if the error had not occurred.”). Claimant does not indicate how in the absence
of the ALJ’s typo the ALJ would have decided differently. Doc. 12, at 10. Thus, the
typo is irrelevant to the outcome.
After a thorough review of the entire record, the Court concludes that substantial
evidence in the record as a whole supports the ALJ’s decision to find claimant was not
disabled. Accordingly, the Court affirms the decision of the ALJ. Judgment shall be
entered in favor of the Commissioner and against claimant.
IT IS SO ORDERED this 10th day of March, 2017.
Chief United States Magistrate Judge
Northern District of Iowa
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