Minney v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATION that the District Court affirm the Commissioner's decision re 1 Complaint filed by Jennifer K Minney. Objections to R&R due by 5/30/2017. Signed by Chief Magistrate Judge CJ Williams on 05/15/2017. (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
JENNIFER K. MINNEY,
Plaintiff,

No. 16-CV-00175-LTS

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

REPORT AND RECOMMENDATION

Defendant.
___________________________
The claimant, Jennifer K. Minney (claimant), seeks judicial review of a final
decision of the Commissioner of Social Security (the Commissioner) denying her
application for disability insurance benefits (DIB) and Supplemental Security Income
(SSI), under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act).
Claimant contends that the Administrative Law Judge (ALJ) erred in determining she was
not disabled.
For the reasons that follow, I recommend the District Court affirm the
Commissioner’s decision.
I.

BACKGROUND

Claimant was born in 1979. On February 27, 2007, the time claimant alleged she
became disabled, she was 28 years old. (AR 16, 158, 165). 1 At the time of the ALJ’s
first decision on May 18, 2012, she was 33 years old. (AR 27). Claimant was 37 years

1

“AR” refers to the administrative record below.

old at the time of the ALJ’s second decision on June 2, 2016. (AR 158, 1460). Claimant
completed high school and had training as a phlebotomist; she had past relevant work
experience as a phlebotomist, residential aid, sales clerk, laborer, salesperson, and child
monitor. (AR 40, 223-24, 1459). Since the birth of her children, claimant has described
herself as a homemaker and homeschools her two minor children, for whom she has
served as their primary caretaker. (AR 1454-55).
On February 23, 2010, claimant filed an application for disability benefits, alleging
disability beginning on February 27, 2007, due to bipolar disorder and borderline
personality disorder.

(AR 16, 158, 165).

The Commissioner denied claimant’s

application initially and upon reconsideration. (AR 16, 82, 93). On February 8, 2012,
ALJ Eric S. Basse held a video hearing and on May 12, 2012, issued a decision finding
claimant was not disabled. (AR 13, 16, 36).
On April 12, 2013, claimant sought judicial review of the ALJ’s decision in this
Court. (Minney v. Colvin, 13-cv-0037-JSS, Doc. 16, at 2). On March 5, 2013, this
Court reversed the ALJ’s decision and remanded the case for further development of her
treating psychiatrist Ali Safdar’s opinion and with instructions that the ALJ “provide clear
reasons for accepting or rejecting Dr. Safdar’s opinions and support his reasons with
evidence from the record.” (Id., at 23). In reversing the ALJ’s decision, this Court
noted that it was a “close issue,” but found the ALJ: (1) “simply provided a generic and
conclusory statement that Dr. Safdar’s opinions are ‘inconsistent with [Minney’s] own
reports regarding her activities of daily living,’”; (2) “offer[ed] little or no discussion of
Minney’s activities of daily living” or explained how those activities are “inconsistent
with Dr. Safdar’s opinions”; (3) “failed to address, let alone offer even one single reason
why Dr. Safdar’s opinion on the issue of decompensation should be disregarded” as well
as the opinion of Carla Levi, a counselor on Dr. Safdar’s staff who also saw claimant;
2

(4) and improperly relied on “submission of one inconsistent GAF score” as a reason
“standing alone” to reject Dr. Safdar’s opinions.” (Id., at 21-23).
On April 6, 2016, the ALJ held a supplemental hearing. (AR 1441, 1472). On
June 2, 2016, the ALJ issued his decision, again denying benefits. (AR 1438). After
sixty days, the ALJ’s decision became the final agency decision on remand. (AR 1439).
On September 26, 2016, claimant filed a complaint in this Court. (Doc. 1). On
March 8, 2017, claimant filed her brief (Doc. 10), and on April 5, 2017, the
Commissioner filed her brief (Doc. 12). On April 18, 2017, the Court deemed the case
ready for decision and the Honorable Leonard T. Strand, Chief United States District
Court Judge, referred this case to me for a Report and Recommendation.
II.

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). An individual has a
disability when, due to his/her physical or mental impairments, he/she “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). 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
3

regulations.

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. “Substantial” work activity
involves significant mental or physical activities. “Gainful” activity is work done for
pay or profit, even if the claimant does 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 medical 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 having the ability and aptitude
necessary to perform most jobs. These abilities and aptitudes 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, co-workers, 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.

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) and the demands of his/her past relevant
4

work. If the claimant can still perform past relevant work, then the claimant is considered
not disabled. Past relevant work is any work the claimant has done within the past 15
years of his/her application that was substantial gainful activity and lasted long enough
for the claimant to learn how to do it. A claimant’s “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 marks and
citations 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. 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. See Bladow v. Apfel, 205 F.3d 356, 358 n.5 (8th Cir. 2000). 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 is 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. 2004).
If after these five steps, the ALJ has determined the claimant is disabled, but there
is medical evidence of substance use disorders, the ALJ must decide if that substance use
5

was a contributing factor material to the determination of disability.

42 U.S.C. §

423(d)(2)(C). The ALJ must then evaluate the extent of the claimant’s limitations without
the substance use. Id. If the limitations would not be disabling, then the disorder is a
contributing factor material to determining disability, and the claimant is not disabled.
III.

THE ALJ’S FINDINGS

The ALJ engaged in the five-step sequential analysis outlined above, as reflected
in his written decision.
At Step One, the ALJ found claimant had not been engaged in substantial gainful
activity since February 27, 2007. (AR 1443).
At Step Two, the ALJ determined claimant had the following severe impairments:
“obesity, asthma, migraines, mood disorder, major depressive disorder, bipolar affective
disorder, borderline personality disorder, history of generalized anxiety disorder and
posttraumatic stress disorder.” (AR 1443-44).
At Step Three, the ALJ concluded that claimant did not have an impairment or
combination of impairments that met or medically equaled in severity one of the listed
impairments. (AR 1446-49).
At Step Four, the ALJ determined claimant’s RFC. The ALJ found that “claimant
has the residual functional capacity to perform sedentary work . . . except the claimant
can have no concentrated exposure to pulmonary irritants. (AR 1449). The ALJ found
claimant could “perform simple routine tasks, involving no more than simple workrelated decisions and few workplace changes” and “can have brief and superficial
interaction with the public and coworkers, and occasional interaction with supervisors.”
(Id.).
Based on this RFC assessment, at Step Five, the ALJ determined that, although
claimant could not perform any past relevant work, based on the testimony of a vocational
6

expert there were jobs in significant numbers in the local and national economy that the
claimant could perform, including addresser, document preparer, and ticket checker.
(AR 1459-60). The ALJ concluded, therefore, that claimant was not disabled. (AR
1460).
IV.

THE SUBSTANTIAL EVIDENCE STANDARD

A court must affirm the Commissioner’s decision “‘if the ALJ’s decision is
supported by substantial evidence in the record as a whole.” Wright v. Colvin, 789 F.3d
847, 852 (8th Cir. 2015) (quoting Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008));
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
it as adequate to support a decision.” Wright, 542 F.3d at 852 (quoting Juszczyk, 542
F.3d at 631).

The Eighth Circuit Court of Appeals has explained the standard as

“something less than the weight of the evidence and 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.
2010).

The court must “search the record for evidence contradicting the

[Commissioner’s] decision and give that evidence appropriate weight when determining
7

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) (quoting 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 “simply
because some evidence may support the opposite conclusion.” Perkins v. Astrue, 648
F.3d 892, 897 (8th Cir. 2011) (internal quotation marks and citation omitted). See also
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative decision is
not subject to reversal simply because some evidence may support the opposite
conclusion.” (internal citation omitted)).
V.

DISCUSSION

Claimant argues the ALJ erred in two ways:
1.

The ALJ’s Residual Functional Capacity assessment is flawed
because the ALJ failed to properly evaluate the work related
limitations from treating psychiatrist, Dr. Ali Safdar. (Doc. 10, at
4-24).
8

2.

The ALJ’s residual functional capacity assessment is flawed because
it is not supported by substantial medical evidence from a treating or
examining source. (Doc. 10, at 25-26).

I will address both of these issues below. I will start, however, by reviewing the ALJ’s
findings regarding claimant’s daily activities and her credibility because these matters
undergirded the basis for this Court’s reversal of the ALJ’s prior decision and because
the findings here influenced the weight the ALJ gave Dr. Safdar’s opinions and the ALJ’s
residual functional capacity assessment.
A.

Claimant’s Daily Activities and Credibility

The ALJ found claimant was not a credible source regarding the intensity,
persistence, and functionally limiting effects of her impairments.

(AR 1450).

In

assessing claimant’s credibility, the Eighth Circuit Court of Appeals identified in Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), relevant factors an ALJ should
consider. These include: (1) claimant’s daily activities; (2) the duration, intensity, and
frequency of pain; (3) the precipitating and aggravating factors; (4) the dosage,
effectiveness, and side effects of medication; (5) functional restrictions; (6) claimant’s
work history; and (7) the absence of objective medical evidence to support the claimant’s
complaints. The ALJ considered these factors. (AR 1446-55).
The ALJ examined claimant’s daily activities and found them inconsistent with
claimant’s description of the severity of her impairments. The ALJ found that claimant
was the primary caregiver for her two minor children, cared for the family pets, did
laundry, prepared meals for the family, and maintained her own self-care. (AR 144647). Although claimant testified she forgot to bathe and dress herself when her mental
health symptoms were exacerbated and needed her husband to call her and leave her

9

notes, the ALJ found this inconsistent with medical records showing she appeared for
appointments appropriately dress and well groomed, and the fact that she continued to be
the trusted primary caregiver for her children. (AR 1447). Regarding claimant’s social
functioning, the ALJ found her claims of paranoia and fears of social events and men
inconsistent with her shopping in stores on a weekly basis, attending play groups and a
breast-feeding group, and the relationship she maintains with her husband and her
mother-in-law, who helped homeschool claimant’s eight-year-old child. (Id.). The ALJ
further found claimant’s alleged memory problems, difficulty handling stress, and
becoming distracted by her mental health impairments inconsistent with her daily
activities of paying bills, handling bank accounts, sewing, knitting, crocheting, playing
games and reading, and inconsistent with medical records that indicate claimant’s
immediate and remote memory abilities are intact and that she has an average intellectual
capability. (Id.).
The ALJ found claimant’s allegation that she is disabled because of asthmatic
problems inconsistent with the medical records which showed she needed a nebulizer and
inhaler only during allergy season, treatment notes showing claimant exhibited good
cardiopulmonary functions, and records indicating claimant’s condition responds quickly
to medical treatment. (AR 1450). The ALJ found claimant’s assertion that she was
disabled because of suffering migraine headaches every two to three weeks inconsistent
with medical records that do not reflect complaints of migraines with that frequency and
inconsistent with the fact that claimant received little treatment for the condition. (Id.).
The ALJ noted claimant had a consistent work history prior to the alleged onset
of her disability, which the ALJ noted weighed in her favor. (AR 1454). The ALJ noted,
however, that claimant alleged she stopped working due to her impairments, but the
record reflects that she left her last job due to concern over her pregnancy and her
10

intention to become a stay-at-home mother. (Id.). The ALJ found the fact that claimant
has not returned to work since the birth of her first child, and her self-references to being
a homemaker during medical visits, inconsistent with her leaving work because of her
impairments. (AR 1454-55). The ALJ also noted that claimant has reported suffering
from her impairments since 2002, but the alleged severity of those impairments was
inconsistent with the fact that claimant continued to work until 2007 while allegedly
suffering from them. (AR 1455).
The ALJ also found claimant exhibited poor compliance with taking medications.
(AR 1451-52). An ALJ may conclude that noncompliance with medication detracts from
a claimant’s credibility. See Whitman v. Colvin, 762 F.3d 701, 706 (8th Cir. 2014)
(noting that noncompliance medical treatment undercuts credibility).
In short, I find there was substantial evidence on the record as a whole to support
the ALJ’s decision to discount the weight given to claimant’s description of the intensity,
persistence, and functionally limiting effects of her impairments. It is perhaps telling that
claimant does not challenge the ALJ’s credibility finding.

The ALJ’s finding that

claimant lacked credibility in reporting her own symptoms and impairments affected the
ALJ’s decision regarding the weight to be given to the medical opinions and the ALJ’s
residual functional capacity assessment.
B.

ALJ’s Evaluation of the Medical Opinions

Claimant argues the ALJ erred at Step Four of the analysis when he allegedly did
not give proper weight to the opinions of claimant’s treating psychiatrist, Ali Safdar.
(Doc. 10, at 4-24). In September 2010, Dr. Safdar opined that claimant was seriously
limited but not precluded in her ability to:
maintain attention for two hours; maintain regular attendance and be
punctual within customary usual strict tolerances; sustain an ordinary
11

routine without special supervision; work in coordination with or proximity
to others without being unduly distracted; complete a normal workday and
workweek without interruptions from psychologically based symptoms;
perform at a consistent pace without an unreasonable number and length of
rest periods; accept instructions and respond appropriately to criticism from
supervisors; get along with coworkers or peers without unduly distracting
them or exhibiting behavioral extremes; respond appropriately to changes
in a routine work setting; deal with normal work stress; understand,
remember, and carryout detailed instructions; set realistic goals or make
plans independently of others; deal with stress of semi-skilled and skilled
work; maintain socially appropriate behavior; and travel to unfamiliar
places.
(AR 1335-36, 1456).

Dr. Safdar also opined claimant had moderate limitations in

activities of daily living, social functioning, and in maintaining concentration,
persistence, and pace. (AR 1337, 1456). Dr. Safdar further opined claimant would have
four or more episodes of decompensation, each of extended duration, within a 12-month
time frame and she would miss work more than four days per month. (AR 1337-38,
1456). Dr. Safdar did not explain in his opinion how he reached the conclusion that
claimant would suffer four or more episodes of decompensation a year, or miss more
than four days of work per month.
In May 2016, Dr. Safdar opined claimant was seriously limited in her ability to:
understand, remember, and carryout detailed instructions; set realistic goals
or make plans independently of others; maintain attention for two-hour
segments; maintain regular attendance and be punctual within customary
tolerances; maintain socially appropriate behavior; work in coordination
with or proximity to others without being unduly distracted; complete a
normal workday and workweek without interruptions from psychologically
based symptoms; perform at a consistent pace without an unreasonable
number and length of rest periods; get along with co-workers or peers
without unduly distracting them or exhibiting behavioral extremes, and deal
with normal work stress.
12

(AR 2065-2066). Dr. Safdar again opined that claimant had moderate limitations in
activities of daily living, social functioning, and in maintaining concentration,
persistence, and pace. (AR 1456, 2067). He once again further opined that claimant
would have four or more episodes of decompensation, each of extended duration, within
a 12-month time frame and that she would miss work more than four days per month.
(AR 1457, 2066-67). Again, however, Dr. Safdar did not explain in his opinion how he
reached the conclusion that claimant would suffer four or more episodes of
decompensation a year, or miss more than four days of work per month.
During the 2016 hearing, when the ALJ questioned Dr. Safdar about how he
arrived at the conclusion that claimant would miss four days of work per month, he
replied that it was the highest number on the form. (AR 1485). When the ALJ inquired
about the medical basis for that conclusion, Dr. Safdar testified that claimant’s “emotional
instability, you know not sleeping, too much sleeping, lack of energy, kind of bouncing
back and forth, not really coping or functioning day to day and that was my rough
estimate.” (AR 1485-86). Dr. Safdar acknowledged a problem with his notes supporting
this conclusion, explaining that “frankly when we see these people, these are just
medication management sessions and we really do not do a work assessment or a
disability evaluation every time, so a lot of the notes might have some things missing.”
(AR 1486). When the ALJ asked Dr. Safdar to explain the basis for his conclusion that
claimant would have multiple episodes of decompensation a year, Dr. Safdar explained:
She really has not been able to maintain any stability for any significant
length of time. She might do okay for a week or ten days and then might
be back either depressed or manic or paranoid or hearing, seeing things and
those are the issues that I’ve been seeing that she really has not been able
to function at a sustained level for any significant length of time. So every
day is kind of a different day and a different situation for her.
13

(AR 1486-87). The ALJ asked Dr. Safdar to reconcile that conclusion with his notes that
show her “doing well, feeling fairly well, not too many mood swings.” (Id.). Dr. Safdar
explained that his notes are like “snapshots” of a patient” and that claimant could change
from day to day. (AR 1487-88).
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 is not, however, required to explicitly discuss every factor in 20 C.F.R. § 404.1527.
See Molnar v. Colvin, No. 4:12-CV-1228-SPM, 2013 WL 3929645, at *2 (E.D. Mo. July
29, 2013) (“[A]lthough the ALJ did not explicitly discuss every factor of 20 C.F.R. §
404.1527(c) in evaluating the opinions of Plaintiff’s treating sources, the ALJ was not
required to do so.”) (unpublished) (citing Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir.
1998) (the ALJ does need not discuss every piece of evidence submitted, and the ALJ’s failure
to discuss specific evidence does not mean that it was not considered by the ALJ)).
As an initial matter, claimant asserts that the ALJ should have given more weight
to both her treating psychiatrist Dr. Safdar and her treating counselor, Carla Levi, who
worked with Dr. Safdar. Dr. Safdar, as a psychiatrist who saw claimant on a number of
occasions between 2010 and 2016, is “an acceptable medical source.” (20 C.F.R. §
404.1513(a)). Ms. Levi, as the ALJ noted however, is not an acceptable medical source.
14

(AR 1457; 20 C.F.R. §§ 404.1513(a); (416.913(a)). As such, Ms. Levi’s opinions were
only entitled to consideration, but not great weight. Lacroix v. Barnhart, 465 F.3d 881,
886 (8th Cir. 2006). The ALJ did consider Ms. Levi’s opinions and found them to be
inconsistent with her own records and the rest of the medical evidence in the same way
and for the same reasons he found Dr. Safdar’s opinions not deserving of great weight.
(AR 1457).
Here, the ALJ weighed the opinions of various medical providers, affording some
more weight than others. The ALJ afforded Dr. Safdar’s opinions “little weight.” (AR
1456-58). The ALJ concluded that Dr. Safdar’s medical notes and observations were
inconsistent with the limitations he found and his conclusion that claimant would have
four or more episodes of decompensation within a 12-month time frame and would miss
work more than four days per month. (Id.). As noted, this Court previously reversed
the ALJ and remanded this case when the ALJ previously reached the same conclusion
because the Court was not satisfied that the ALJ had explained the basis for discounting
claimant’s treating psychiatrist’s opinion. Thus, the question now before me is whether
in the ALJ’s new decision he provided an adequate explanation for discounting Dr.
Safdar’s opinion.

I find the ALJ has fully and adequately explained his basis for

discounting the weight he gave to Dr. Safdar’s opinion.
The ALJ noted that prior to Dr. Safdar rendering an opinion in 2010, he had only
briefly seen claimant on three occasions in that year. (AR 1456). Although Dr. Safdar
subsequently saw claimant every four to six weeks between 2010 and 2016 (AR 1487),
none of these visits were long and most were focused on her medications. (AR 1458,
1486). Treating physicians are given more weight typically because they are presumed
to know more about the patient than nontreating physicians.

Cf. 20 C.F.R. §§

404.1527(d)(2)(i) & 416.927(d)(2)(i) (“Generally, the longer a treating source has treated
15

you and the more times you have been seen by a treating source, the more weight we will
give to the source’s medical opinion.”). The relationship Dr. Safdar had with claimant
was not the type of long-term, frequent, and close doctor/patient relationship deserving
of great weight simply on the ground that Dr. Safdar was claimant’s treating psychiatrist.
See Randolph v. Barnhart, 386 F.3d 835, 840 (8th Cir. 2004) (finding ALJ properly
discounted weight given to treating physician when “[t]he treatment notes from these
sessions do not indicate that Vega had sufficient knowledge upon which to formulate an
opinion as to Randolph’s ability to function in a workplace[;]never treated Randolph
during any period of employment and her treatment notes do not provide any evidence
that she even asked Randolph about her prior experience in the workplace or her current
ability to maintain employment.”). As in Randolph, Dr. Safdar never treated claimant
during any time of employment and his notes do not reflect that he asked her about her
prior work experience or her current ability to work.
The ALJ discounted the weight given to Dr. Safdar’s opinion in part because he
found it inconsistent with Dr. Safdar’s own treatment records. Dr. Safdar’s treatment
notes from 2010, for example, reflected that claimant was generally doing well on her
medication and had normal mental status findings, although there were some periods of
fluctuation. (AR 1260, 1259-60, 1311, 1340, 1407-12, 1456, 1458, 2112-18, 2121-22,
2129). Although Dr. Safdar had an explanation for why support was lacking in his notes,
the ALJ cannot be found to have erred when relying on a treating physician’s notes in
assessing the degree to which they are consistent or inconsistent with the doctor’s opinion.
An ALJ cannot be left to speculate as to what the doctor might have or could have put in
his notes. The ALJ also found that Dr. Safdar’s opinion was in error when he asserted
claimant’s highest GAF in the past year was 50 (AR 1333, 1456), because his records
showed GAF scores ranging from 58 to 62. (AR 1308, 1313, 1342, 1456, 1458, 2234).
16

Ultimately, the ALJ found Dr. Safdar’s notes to be inconsistent with his opinion of the
extreme severity of claimant’s impairments. See Milam v. Colvin, 794 F.3d 978, 983
(8th Cir. 2015) (holding the ALJ properly discounted the weight given to a treating
physician when it was inconsistent with his own treatment notes and other medical
opinions); Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (“A treating
physician’s own inconsistency may also undermine his opinion and diminish or eliminate
the weight given his opinions.”); Garza v. Barnhart, 397 F.3d 1087, 1089 (8th Cir.
2005) (internal citation omitted) (holding that a physician’s opinion is entitled to less
weight when it is inconsistent with the physician’s own findings).
The ALJ also found Dr. Safdar’s opinion was not supported by other medical
opinions and evidence. An ALJ may discount the weight given to opinions of treating
doctors when, as here, the opinions are inconsistent with other medical records. See,
e.g., Michel v. Colvin, 640 Fed. App’x. 585, 593-94 (8th Cir. 2016) (finding ALJ did
not err in giving little weight to physician’s opinion when it was contradicted by other
acceptable medical sources in the record); Myers v. Colvin, 721 F.3d 521, 525 (8th Cir.
2013) (“We conclude that substantial evidence supports the ALJ’s determination that [the
doctor’s] opinion was inconsistent with the treatment record and thus not entitled to
controlling weight.”); Beard v. Astrue, 479 Fed. App’x 24, 25-26 (8th Cir. 2012)
(unpublished) (finding it proper for ALJ to discount the weight given to a treating
physician’s opinion when it was inconsistent with the results of a consulting physician’s
examination). The ALJ gave significant weight to the opinion of Dr. Barbara Lips, an
independent consultative examiner, who found claimant could understand and remember
instructions, procedures, and locations of at least moderate complexity and, although Dr.
Lips found claimant had some limitations, concluded claimant could perform simple
work. (AR 1455). The ALJ also gave significant weight to the opinions of Dr. Scott
17

Shafer, a non-examining consulting medical source who opined that claimant did not meet
or equal a medical listing and she had only mild or moderate restrictions that would not
preclude her employment. (AR 1455-56). The ALJ also gave significant weight to Dr.
Sandra Davis, another non-examining consulting medical source, who also found
claimant had some mild and moderate limitations. (AR 1457).
The ALJ also discounted the weight given to Dr. Safdar’s opinion because its
inconsistency with other medical records and opinions led the ALJ to conclude Dr. Safdar
based his opinions on claimant’s subjective complaints. As noted, the ALJ found claimant
was not credible in describing the severity and persistence of her impairments. The ALJ
was not bound to credit opinions resting on a claimant’s unsupported claims, particularly
when they were contradicted by other evidence. Indeed, a physician’s opinion is not
entitled to any special weight where, as here, the opinion is based largely on the subjective
statements by the claimant and is not supported by other evidence. See Kirby, 500 F.3d
at 709 (“It is the function of the ALJ to weigh conflicting evidence and to resolve
disagreements among physicians . . .. The ALJ was entitled to give less weight to Dr.
Harry’s opinion, because it was based largely on Kirby’s subjective complaints rather
than on objective medical evidence.”) (citation omitted); Harker v. Colvin, No. 15-cv2032-CJW, 2016 WL 3440608, at *7 (N.D. Iowa June 20, 2016) (holding that the ALJ
properly discounted the weight afforded to a physician’s opinion when it was based
largely on the claimant’s subjective statements). Where a claimant is incredible regarding
his impairments, an ALJ may properly discount the weight given to providers’ opinions
which are based on the claimant’s statements. Julin v. Colvin, 826 F.3d 1082, 1088-89
(8th Cir. 2016).
The ALJ also discounted the weight given to Dr. Safdar’s opinion because it was
inconsistent with claimant’s daily activities.
18

As noted, claimant was the primary

caregiver to her two minor children and participated in individual and group activities
that involved a level of social interaction and attention and concentration that were
inconsistent with the severe limitations Dr. Safdar opined were present. See Toland v.
Colvin, 761 F.3d 931, 935-36 (8th Cir. 2014) (holding that an ALJ may discount the
weight given to a treating physician’s opinion when it is inconsistent with the claimant’s
daily activities); Roberson v. Astrue, 481 F.3d 1020, 1025 (8th Cir. 2007) (affirming an
ALJ’s finding of no disability where the claimant “engaged in extensive daily activities,”
testifying “that she took care of her eleven-year-old child, drove her to school and did
other driving, fixed simple meals for them, did housework, shopped for groceries, and
had no difficulty handling money”).
Claimant argues the ALJ improperly considered claimant’s GAF scores in
discounting the weight afforded to Dr. Safdar’s opinions. (Doc. 10, at 19, 21-24). The
ALJ referenced GAF scores in relation to evaluating the inconsistencies of Dr. Safdar’s
reporting of GAF scores, and more generally in summarizing claimant’s medical records.
The Eighth Circuit Court of Appeals has concluded that GAF scores have “little value.”
See Nowling v. Colvin, 813 F.3d 1110, 1115 n.3 (8th Cir. 2016) (quoting Jones v. Astrue,
619 F.3d 963, 973-74 (8th Cir. 2010) (“Moreover, the Commissioner has declined to
endorse the [GAF] score for use in the Social Security and [Supplemental Security
Income] disability programs and has indicated that [GAF] scores have no direct
correlation to the severity requirements of the mental disorders listings.”)).
Nevertheless, an ALJ should consider them along with all of the other medical evidence.
(Doc. 12-1; SSR: GLOBAL ASSESSMENT OF FUNCTIONING EVIDENCE IN ADJUDICATION,
AM-13066-REV (Oct. 14, 2014). Here, the ALJ considered the GAF scores, but did not
place improper reliance on them or reject Dr. Safdar’s opinions on the basis of GAF
scores.
19

Claimant argues the ALJ erred because to the extent he discounted Dr. Safdar’s
opinions, and because of claimant’s noncompliance with medication and substance abuse,
the ALJ failed to consider the possibility that claimant’s noncompliance and substance
abuse were the products of her mental illness. (Doc. 10, at 24). In reviewing the medical
record, the ALJ noted that many of claimant’s hospital admissions occurred when she
was not taking her medications or during relapses in using alcohol. (AR 1451). The
ALJ further noted other medical records showing that claimant’s symptoms became more
severe when she was noncompliant with her medications and/or had relapsed in her use
of alcohol. (AR 1452). The ALJ did not specifically address whether claimant’s failure
to comply with her medications or her relapse of alcohol use was the product of her
mental illness.
Claimant implies that her mental illness caused her noncompliance with her
medications, citing to studies reflecting a connection between mental illness and
noncompliance in the use of medications. (Doc. 10, at 24-25). Claimant does not,
however, point to anything in the record showing that claimant’s noncompliance was the
product of her mental illness. Claimant has the burden of demonstrating she is disabled
through step four. Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citation omitted).
Plaintiff relies on this Court’s decision in Horst v. Colvin, No. 15-cv-3153-CJW, 2016
WL 6436565, at *4 (N.D. Iowa Oct. 28, 2016) (citing Pate-Fires v. Astrue, 564 F.3d
935 (8th Cir. 2009)). (Doc. 10, at 24). In Horst, however, the Court noted that the
record was devoid of evidence linking the claimant’s mental illness to the noncompliance
with taking medication and indicated that it would have found against claimant on the
issue because it was claimant’s burden to show such evidence, but because the Court
remanded the case on other grounds, it instructed the ALJ to develop the record in this
area as well. Pate-Fires is distinguishable from this case precisely because the record in
20

that case showed a direct link between the claimant’s mental illness and his
noncompliance with medication. Pate-Fires, 564 F.3d at 945-46. Claimant cannot rely
on speculation here to suggest her noncompliance derived from her mental illness. More
importantly, the ALJ’s conclusion in determining the weight to give Dr. Safdar’s opinion
regarding the severity of claimant’s limitations was not erroneous for considering
claimant’s noncompliance as an explanation for the variation in the severity of her
symptoms. Impairments that respond well to treatment and medication are not consistent
with a finding of total disability. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.
2000) (“Impairments that are controllable or amenable to treatment do not support a
finding of disability.”) (quotation omitted).
In summary, I find there is substantial evidence in the record as a whole for the
weight the ALJ afforded Dr. Safdar’s opinions.
C.

The Residual Functional Capacity Determination

Claimant argues the ALJ erred in determining claimant’s residual functional
capacity because it was not supported by substantial medical evidence from a treating
source or even an examining source. (Doc. 10, at 25-26). Claimant provided no analysis
or explanation for why she believes the ALJ’s RFC is flawed. Rather, after reciting a
page of boilerplate law, claimant provides a single sentence of argument: “Given the
consistent opinions of Dr. Safdar, Ms. Levi, and Dr. Lips, the five year old opinions
from the non-examining state agency psychological consultants are not substantial
medical evidence.” (Doc. 10, at 26). Claimant cites the holding in Nevland v. Apfel,
204 F.3d 853, 858 (8th Cir. 2000), for the proposition that an ALJ errs if the ALJ relies
solely “on the opinions of non-treating, non-examining physicians who reviewed the
reports of the treating physicians to form an opinion” about a claimant’s RFC. (Doc.
10, at 26).
21

An ALJ must determine a claimant’s residual functional capacity based on “all of
the relevant evidence, including the medical records, observations of treating physicians
and others, and an individual’s own description of [his] limitations,” but “there is no
requirement that an RFC finding be supported by a specific medical opinion.” Hensley
v. Colvin, 829 F.3d 926, 931-32 (8th Cir. 2016) (alterations in original). Here, I find
the ALJ properly accounted for claimant’s impairments in structuring claimant’s RFC
limitations and the RFC assessment is supported by substantial evidence on the record as
a whole. This included consideration of claimant’s treatment records; the opinions of a
consulting, examining physician; the opinions of consulting, non-examining physicians;
and records from hospitals and other care providers. Nevland does not require reversal
where, as here, the ALJ had the benefit of medical evidence from examining and treating
sources and did not simply rely on the opinions of non-examining consulting physicians.
See Sneller v. Colvin, No. C12-4113-MWB, 2014 WL 855618, at *9 (N.D. Iowa Mar.
5, 2014) (unpublished) (holding Nevland did not compel reversal because “the ALJ had
medical evidence from a treating source”). Nor was the ALJ bound to accept the treating
physician’s opinions in determining the claimant’s RFC. An ALJ may disregard that
portion of a treating physician’s opinions that the ALJ has found to be inconsistent with
and unsupported by the medical record as a whole. Craig v. Apfel, 212 F.3d 433, 43647 (8th Cir. 2000). It is not for this court to “reweigh the evidence presented to the
ALJ,” Baldwin, 349 F.3d at 555, or “review the factual record de novo.” Roe, 92 F.3d
at 675 (internal quotation and citation omitted).
Accordingly, I find the ALJ did not err and that substantial evidence in the record
as a whole supports the ALJ’s residual functional capacity determination.

22

VI. CONCLUSION
For the reasons set forth herein, I respectfully recommend the District Court
affirm the Commissioner’s determination that claimant was not disabled, and enter
judgment against claimant and in favor of the Commissioner.
Parties must file objections to this Report and Recommendation within fourteen
(14) days of the service of a copy of this Report and Recommendation, in accordance
with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b). Objections must specify the parts
of the Report and Recommendation to which objections are made, as well as the parts of
the record forming the basis for the objections. See FED. R. CIV. P. 72. Failure to object
to the Report and Recommendation waives the right to de novo review by the district
court of any portion of the Report and Recommendation as well as the right to appeal
from the findings of fact contained therein. United States v. Wise, 588 F.3d 531, 537
n.5 (8th Cir. 2009).
IT IS SO ORDERED this 15th day of May, 2017.

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

23