Davis v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATION re 3 Complaint filed by John J Davis, recommending that the District Court affirm the Commissioner's determination that claimant was not disabled, and enter judgment against claimant and in favor of the Commissioner. Objections to R&R due by 8/10/2018. Signed by Chief Magistrate Judge CJ Williams on 7/27/2018. (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
JOHN J. DAVIS,
Plaintiff,

No. 17-CV-80-LRR

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

REPORT AND
RECOMMENDATION

Defendant.
___________________________
The claimant, John J. Davis (“claimant”), seeks judicial review of a final decision
of the Commissioner of Social Security (“the Commissioner”) denying his 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. §§ 401-34 (Act). Claimant
contends that the Administrative Law Judge (“ALJ”) erred in determining that claimant
was not disabled. For the following reasons, I respectfully recommend that the Court
affirm the ALJ’s decision.
I.

BACKGROUND

I have adopted the facts as set forth in the parties’ Joint Statement of Facts
(Doc. 13) and, therefore, will summarize only the pertinent facts. Claimant was born in
1962, was 50 years old when he allegedly became disabled, and was 54 years old at the
time of the ALJ’s decision. (AR 115-16).1 Claimant has prior work experience; his
work activity since the alleged onset date, however, did not rise to the level of substantial
gainful activity. (AR 107).

1

“AR” refers to the administrative record below.

On February 10, 2014, claimant applied for a period of disability and disability
insurance benefits. (AR 105). On December 22, 2014, claimant applied for supplemental
security income. (Id.). In both applications, claimant alleged disability beginning May
1, 2013. (Id.). In 2014, the Commissioner denied claimant’s application initially and on
reconsideration. (AR 124-27, 134-37). On April 19, 2016, ALJ Julie Bruntz held a
hearing at which claimant and a vocational expert testified. (AR 23-65). On June 23,
2016, the ALJ found claimant was not disabled. (AR 105-16). On June 23, 2017, the
Appeals Council denied claimant’s request for review of the ALJ’s decision, making the
ALJ’s decision final and subject to judicial review. (AR 8-11).
On July 24, 2017, claimant filed his complaint in this Court. (Doc. 3). By January
31, 2018, the parties had submitted their respective briefs (Docs. 14; 15), and on
February 21, 2018, the Court deemed this case fully submitted and ready for decision
(Doc. 16). On May 21, 2018, the Honorable Linda R. Reade, 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), 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

2

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
regulations.

Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007).

First, the

Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled.

20 C.F.R.

§ 416.920(a)(4)(i). “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.
§ 416.920(a)(4)(ii). 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 do 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. Bowen v. Yuckert, 482 U.S. 137, 141 (1987). 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, co-workers, and usual work situations; and (6) dealing with
changes in a routine work setting. Id.; see also 20 C.F.R. § 404.1521.
Third, if the claimant has a severe impairment, then the Commissioner will
determine the medical severity of the impairment. 20 C.F.R. § 416.920(a)(4)(iii). If the
impairment meets or equals one of the presumptively disabling impairments listed in the

3

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 past relevant work.
20 C.F.R. § 416.920(a)(4)(iv). If claimant can still do his past relevant work, then he is
considered not disabled. (Id.). Past relevant work is any work the claimant performed
within the fifteen years prior to his application that was substantial gainful activity and
lasted long enough for the claimant to learn how to do it. § 416.960(b). “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 [ ] physical
or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (citations
and internal quotation marks omitted). The RFC is based on all relevant medical and
other evidence. Claimant is responsible for providing the evidence the Commissioner
will use to determine the RFC. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir.
2004). 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 to make the adjustment to other work, but also that other work exists in significant
numbers in the national economy. Eichelberger, 390 F.3d at 591. 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 medical
history before making a determination about the existence of a disability. The burden of

4

persuasion to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004).
III.

THE ALJ’S FINDINGS

The ALJ made the following findings at each step:
At Step One, the ALJ found that claimant had not engaged in substantial gainful
activity since May 1, 2013, the alleged onset date of disability. (AR 107).
At Step Two, the ALJ found that claimant had the following severe impairments:
“degenerative disc disease of the lumbar spine, osteoarthritis of the knees, fibromyalgia,
asthma, affective disorder, personality disorder, and substance abuse disorder.”
(AR 108).
At Step Three, the ALJ found that none of claimant’s impairments or combination
of impairments met or medically equaled a presumptively disabling impairment listed in
the relevant regulations. (Id.).
At Step Four, the ALJ found claimant had the RFC to perform light work with the
following limitations:
[Claimant] could lift and carry 20 pounds occasionally and 10 pounds
frequently. He could stand and walk for six hours in an eight-hour workday
and sit for six hours in an eight-hour workday. His ability to push and pull,
including the operation of hand and foot controls, would be unlimited within
these weights. He is left-hand dominant. He could occasionally climb
ramps and stairs, balance, stoop, kneel, and crouch. He could never climb
ladders, ropes, or scaffolds, and never crawl. He would need to avoid
concentrated exposure to extreme cold, humidity, fumes, odors, gasses,
poor ventilation, and dust. Further, he would be limited to performing
simple, routine tasks. He could have only occasional contact with the
public, coworkers, and supervisors.
(AR 109-10). Also at Step Four, the ALJ found that “comparing the claimant’s
current RFC with the demands of the claimant’s past relevant work, the demands

5

of said work exceed the current RFC. Accordingly, the clamant is unable to
perform past relevant work.” (AR 115).
At Step Five, the ALJ found that considering claimant’s age, education, work
experience, and RFC, there were jobs that existed in significant numbers in the national
economy that claimant could perform.

(Id.).

These included Assembler, Molding

Machine Tender, and Mail Sorter. (AR 116). Therefore, the ALJ found that claimant
was not disabled. (Id.).
IV.

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 (citations and internal
quotation marks omitted). 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) (citations and
internal quotation marks omitted).
In determining whether the Commissioner’s decision meets this standard, a court
“consider[s] all of the evidence that was before the ALJ, but . . . do[es] not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (citation omitted). A
court considers both evidence that 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

6

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, “do[es] 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 “find[s] 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) (“[A]n administrative decision is not subject to reversal
simply because some evidence may support the opposite conclusion” (citation omitted).).
V.

DISCUSSION

Claimant argues that the ALJ erred in three ways. First, claimant argues the ALJ’s
RFC assessment is flawed because the ALJ discounted claimant’s subjective allegations
without identifying inconsistencies within the record as a whole. (Doc. 14, at 3-12).
Second, claimant argues that new and additional evidence was erroneously omitted from
the record by the Appeals Council. (Doc. 14, at 13-15). Third, claimant argues that

7

because the ALJ’s decision was not supported by substantial medical evidence from a
treating or examining source, the ALJ’s decision could not have been supported by
substantial medical evidence on the record as a whole. (Doc. 14, at 15-17). I will address
each argument in order.
A.

Claimant’s Subjective Allegations

Claimant argues that the ALJ’s RFC assessment at Step Four was flawed because
the ALJ did not have a sufficient reason for discounting claimant’s subjective allegations.
(Doc. 14, at 3). Claimant further contends that the objective record fully supports
claimant’s testimony. (Id., at 3-12).
A claimant’s subjective allegations are to be evaluated according to the standards
set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (outlining the factors
that the adjudicator must give full consideration to relating to subjective complaints). In
addition to the objective medical evidence, the ALJ must consider, inter alia: “(i) [the]
claimant’s daily activities; (ii) the duration, frequency, and intensity of the claimant’s
pain; (iii) precipitating and aggravating factors; (iv) dosage, effectiveness, and side
effects of medication; and (v) functional restrictions.” Wheeler v. Berryhill, No. C174038-LTS, 2018 WL 2266514, at *6 (N.D. Iowa May 17, 2018) (citing Guilliams v.
Barnhart, 393 F.3d 798, 802 (8th Cir. 2005)).
Here, the ALJ referenced claimant’s daily activities; the location, duration,
frequency, and intensity of claimant’s pain; factors that precipitate and aggravate the
symptoms; effectiveness of medication or other treatment modalities; and any other
factors that concern claimant’s functional limitations. (AR 113); accord Polaski, 739
F.2d. at 1322. Although the ALJ did not specifically cite to the Polaski case, she
nevertheless discussed the required relevant factors. Nothing more is needed. See Myers
v. Colvin, 721 F.3d 521, 527 (8th Cir. 2013) (holding the ALJ “was not required to
discuss each factor’s weight in the credibility calculus”). “If the ALJ gives good reasons

8

for discrediting some testimony, the court is bound by that finding unless it is not
supported by substantial evidence on the record as a whole.”

Wheeler, 2018 WL

2266514, at *7 (citing Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992)). This
Court, in Wheeler, pointed to several instances where the ALJ identified inconsistencies
between claimant’s complaints and the medical evidence of record as sufficient “good
reasons” for the ALJ to discredit claimant’s testimony. (Id.).
In her decision, the ALJ pointed to objective medical evidence in the medical
record that eroded claimant’s subjective allegations. (AR 114). The ALJ found that the
physical examinations showed claimant’s functions, such as motor strength, sensation,
reflexes, and gait, had remained “grossly intact” throughout the medical record. (Id.).
Further, the ALJ highlighted that although claimant had a consistently low or agitated
mood, claimant’s general mental status was unremarkable throughout the medical record,
and that treatment notes indicated that claimant’s depression was largely situational.
(Id.).
Further, the ALJ found it significant that the claimant’s own statements and actions
were inconsistent with claimant’s subjective allegations. (AR 113-14). Specifically, the
ALJ highlighted evidence within the record of the claimant’s self-disclosed daily
activities, including independent living, household cleaning, shopping trips, traveling out
of state, and his prior work history, including two jobs claimant performed as recently
as November 2015. (AR 113). The ALJ found that this level of activity contradicted
claimant’s subjective allegations of the intensity, persistence, and limiting effects of the
alleged symptoms. (AR 114).
Claimant argues that a person does not have to be bedridden to be found disabled.
(Doc. 14, at 11) (citing Reed v. Barnhart, 399 F.3d 917, 924 (8th Cir. 2005)). The
Eighth Circuit, however, more recently held that “acts such as cooking, vacuuming,
washing dishes, doing laundry, shopping, driving, and walking, are inconsistent with

9

subjective complaints of disabling pain.” Medhaug v. Astrue, 578 F.3d 805, 817 (8th
Cir. 2009) (citation omitted). Additionally, the Medhaug court found that it was proper
for the ALJ to consider claimant’s employment occurring after the alleged onset of
disability, because “[w]orking generally demonstrates an ability to perform a substantial
gainful activity.” Id., at 816 (alteration in original) (citation and internal quotation marks
omitted). Acts that are inconsistent with subjective allegations diminish a claimant’s
credibility. Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001). Here, in support of
her conclusion that claimant’s subjective allegations contradicted the record, the ALJ
referenced claimant’s inaccurate reporting of his own work history, failure to comply
with recommended treatments, and that the record did not support claimant’s testimony
that he was prescribed a cane for ambulatory assistance. (See AR 110-14). When an
ALJ explicitly discredits a claimant’s testimony and gives good reasons for doing so, a
court should normally defer to the ALJ’s credibility determination because the ALJ has
had the opportunity to observe the claimant firsthand. Gregg v. Barnhart, 354 F.3d 710,
714 (8th Cir. 2003). I find that the ALJ has given good reasons for discounting claimant’s
subjective allegations, and thus, I accept the ALJ’s credibility determination.
While claimant correctly states that the ALJ gave little weight to claimant’s close
friend, Ms. Wendy Bruns’ statement, claimant erroneously argues that the ALJ’s
rejection of Ms. Bruns’ report was a reason the ALJ denied the claim. (Doc. 14, at 12).
In fact, the ALJ simply stated that “great weight cannot be given to [Ms. Bruns’] report
because it . . . is simply not consistent with the objective medical evidence in this case.”
(AR 112). Further, an ALJ may discount corroborating testimony on the same basis used
to discredit the claimant’s testimony. See Black v. Apfel, 143 F.3d 383, 387 (8th Cir.
2006) (stating that the ALJ’s failure to give specific reason for disregarding a third-party’s
testimony was inconsequential, as the same reasons ALJ gave to discredit claimant could
serve as the basis for discrediting the third-party). In this case, I find there are adequate

10

grounds for the ALJ to find that Ms. Bruns’ report could not establish claimant’s
disability, and that her statement was contradicted by the medical evidence in the record.
Therefore, the ALJ could properly reject Ms. Bruns’ statement.
Contrary to claimant’s argument, the ALJ did consider the record as a whole in
deciding to discount claimant’s subjective allegations. I find that although claimant
presented testimony and evidence of disabling limitations, the ALJ’s decision was
supported by substantial evidence on the record as a whole.
B.

Evidence Provided to the Appeals Council

Claimant argues that the Commissioner erred in not including the statement of
claimant’s therapist, Ms. Brenda Miller, LISW, in the Administrative Record. (Doc. 14,
at 14-15). Ms. Miller’s statement was dated November 29, 2016, and was submitted
along with claimant’s brief to the Appeals Council. (AR 318). Although not referenced
by either party, Claimant appears to rely on the Appeals Council’s apparent failure to
properly follow the Social Security Administration’s Hearings, Appeals, and Litigation
Law Manual (“HALLEX”). HALLEX I-3-5-20(C) requires that an analyst for the
Appeals Council “associate” any additional evidence presented to the Appeals Council
into the certified administrative record for judicial review. Ms. Miller’s statement,
however, was omitted from the record. Claimant alleges that this failure to follow the
HALLEX regulations is reversible error, for which this Court must remand.
The Eighth Circuit Court of Appeals has not explicitly ruled on the legal effect of
the HALLEX. See, e.g., Mukakabanda v. Colvin, No. 15-CV-00116-CJW, 2017 WL
405919, *12 n.7 (N.D. Iowa Jan. 30, 2017). Other circuits, however, have. The Ninth
Circuit Court of Appeals has held that “HALLEX does not have the force and effect of
law, it is not binding on the Commissioner[,] and we will not review allegations of
noncompliance with the manual.” Moore v. Apfel, 216 F.3d 864, 868-69 (9th Cir. 2000).
Conversely, the Fifth Circuit Court of Appeals held that although HALLEX does not

11

carry the authority of law, “if prejudice results from a violation [of internal rules, such
as HALLEX], the result cannot stand.” Newton v. Apfel, 209 F.3d 448, 459 (5th Cir.
2000) (citation omitted).
This Court has previously found that the HALLEX’s “guidance is not binding on
courts, but is instructive.” Markovic v. Colvin, No. C15-2059-CJW, 2016 WL 4014683,
at *5 (N.D. Iowa July 26, 2016). I, however, do not have to reach the question of the
binding nature of HALLEX to provide a recommendation in this case, nor does the Court
have to reach this question to render a final judgment.
Pursuant to Title 42, United States Code, Section 405(g), a court may order that
additional evidence be taken before the Commissioner, and that the Commissioner “shall
file with the court . . . in any case in which the Commissioner has not made a decision
fully favorable to the individual, a transcript of the additional record and testimony upon
which the Commissioner’s action in modifying or affirming was based.” Acting sua
sponte, on June 22, 2018, the Court ordered the Commissioner to provide the Court with
Ms. Miller’s statement dated November 29, 2016. (Doc. 17). On July 9, 2018, the
Commissioner filed “a copy of the statement by Ms. Brenda Miller dated November 29,
2016” with the Court.2 (Docs. 18, at 1; 18-1).
Although the ALJ did not review Ms. Miller’s statement, the Appeals Council did
review the statement and concluded that it would not have changed the outcome, had the
statement been provided to the ALJ. (AR 9). Significantly, although the Administrative
Record before the ALJ did not include Ms. Miller’s statement dated November 29, 2016,
it did include Ms. Miller’s notes from twenty sessions with claimant. (See AR 588-640).
The ALJ considered these therapy notes when reviewing claimant’s mental health medical

Ms. Miller’s statement was filed by the SSA as pages 751-58 of the Certified Administrative
Record, and I will cite to Ms. Miller’s statement dated November 29, 2016, as AR 751-58 in
this report and recommendation.
2

12

evidence. (AR 112). These notes contradict Ms. Miller’s statement regarding claimant’s
ability to work. (Compare AR 588-640 with AR 754-55). For example, on October 28,
2014, Ms. Miller enabled claimant to apply for a peer support program position. (AR
596). Yet, in her statement of November 29, 2016, Ms. Miller stated that claimant was
unable to meet competitive standards in the areas of: “[i]nteract[ing] appropriately with
the general public; [w]ork[ing] in coordination with or proximity to others without being
unduly distracted; and [g]et[ting] along with co-workers or peers without unduly
distracting them.” (AR 754-55). Claimant was ultimately not accepted for the position
not because of his impairments, but because of difficulties passing a background check.
(AR 600; 602; 608). In response to claimant’s difficulties finding work, Ms. Miller
offered counseling on “steps [claimant] can take to find employment. (Id.). In contrast,
Ms. Miller’s statement states that claimant is either “seriously limited” or “unable to
meet competitive work standards” in seventeen of twenty-two categories. (AR 754-55).
Finally, Ms. Miller’s statement regarding claimant’s inability to meet competitive work
standards as relayed in claimant’s brief hews very closely to opining on issues reserved
to the Commissioner. 20 C.F.R. § 404.1527(d); (AR 320). Because Ms. Miller’s
statement was inconsistent with the record as a whole, the ALJ would have been justified
in discounting the weight of Ms. Miller’s statement. See Hacker v. Barnhart, 459 F.3d
934, 937-38 (8th Cir. 2006) (holding an ALJ may discount an opinion’s weight when it
is inconsistent with the record as a whole). Therefore, I find that even had Ms. Miller’s
statement been available to the ALJ, the ALJ’s decision would still be supported by
substantial evidence in light of the record as a whole.
Further, Ms. Miller’s statement contains her opinion on claimant’s impairmentrelated limitations and is thus similar to that of a “medical opinion” pursuant to Title 20,
Code of Federal Regulations, Section 404.1527(a)(1) (defining a medical opinion as a
statement that “reflect[s] judgments about the nature and severity of . . . impairment(s)).

13

Medical opinions are statements from acceptable medical sources. Id. Ms. Miller,
however, is a Licensed Independent Social Worker, which is not classified as an
“acceptable medical source.” 20 C.F.R. § 404.1502. Thus, Ms. Miller’s “opinion” is
not entitled to controlling weight and, instead, must be evaluated based on several factors,
including the opinion’s consistency with the record as a whole.
404.1527(c)(4).

20 C.F.R. §

The ALJ may discount the opinion of a treating provider when

limitations within the opinion “stand alone” and were “never mentioned in the
[provider’s] numerous records or treatments.”

Reed, 399 F.3d at 921 (alteration

changed). As described above, I find that there are sufficient inconsistencies between
Ms. Miller’s statements and her numerous treatment notes for the ALJ to have discounted
Ms. Miller’s statement.
In any case, Ms. Miller’s statement does parallel the ALJ’s RFC finding, in that
the ALJ found that claimant could only perform simple, routine tasks and that he could
“have only occasional contact with the public, coworkers, and supervisors.” (AR 110).
The similar result that the ALJ reached demonstrates that the ALJ evaluated the evidence
in a neutral fashion. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (citing
Richardson v. Perales, 402 U.S. 389, 410 (1971) (offering the proposition that the ALJ
possesses no interest in denying benefits and must act neutrally in developing the record)).
Furthermore, I highlight the parallelism because it shows that the limitations the ALJ
incorporated in claimant’s RFC are in consonance with Ms. Miller’s belatedly-produced
opinion. (AR 110; 751-58).
The Eighth Circuit has recognized how peculiar a task it is for the Court to review
how the ALJ might have weighed new evidence, and in fact, that such a task calls for
“speculation” on the part of the Court. Riley v. Shalala, 18 F.3d 619, 622 (8th Cir.
1994)). The Court must apply a balancing test when reviewing contradictory evidence—
here, the Certified Administrative Record, as known to the ALJ, against the recently

14

acquired statement of Ms. Miller. Sobania, 879 F.2d at 444. The record contains the
evaluation of claimant’s mental health by two separate state agency consultants (AR 7981; 96-98), and more than fifty total records of claimant’s mental health, including twenty
notes regarding Ms. Miller’s face-to-face counseling sessions with claimant. (AR 582640). Ms. Miller’s statement offers only eight pages of responses to primarily checkbox
questions, some of which directly contradict her own treatment notes. (See AR 751-58).
Applying the balancing test to the entirety of the record, I find that substantial evidence
on the record as a whole would have supported the ALJ’s decision, even if the ALJ had
the benefit of Ms. Miller’s opinion when deciding claimant’s claim.

Therefore, I

recommend that the Court affirm the ALJ’s decision denying benefits.
C.

Residual Functional Capacity

Claimant argues that it is the ALJ’s duty to ensure that the record includes evidence
produced by a treating or examining physician that addresses claimant’s impairments and
cites Nevland v. Apfel in support of this proposition. (Doc. 14, at 15-17). In the absence
of such evidence, “the ALJ’s decision cannot be said to be supported by substantial
evidence.” (Id.) (relying on Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995)).
The ALJ has the duty to fully develop the record, independent of the claimant’s
burden. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010). The ALJ, however,
does not have to seek additional clarifying statements from a treating physician unless a
crucial issue is undeveloped. Stormo, 277 F.3d at 806. Claimant is correct in that the
administrative record does not contain a “medical opinion,” directly addressing how
claimant’s impairments affect his ability to function now. 3 See 20 C.F.R. 404.1527(a)(1).

3

“Medical opinions. Medical opinions are statements from . . . acceptable medical sources that
reflect judgments about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions.” 20 C.F.R. § 404.1527(a)(2) (emphasis added) (effective for claims filed before
March 27, 2017).

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Eighth Circuit precedent, however, does not require a “medical opinion” when
the ALJ relied on objective medical evidence in assessing claimant’s RFC. Hensley v.
Colvin, 829 F.3d 926, 932 (8th Cir. 2016). A claimant’s RFC is a medical question,
and, thus, some medical evidence must support the determination of a claimant’s RFC.
Eichelberger, 390 F.3d at 591. Nevertheless, the holding in Nevland “does not compel
remand in every case in which the administrative record lacks a treating doctor’s
opinion.” Morrow v. Berryhill, No. C16-2023-LTS, 2017 WL 3581014, at *7 (N.D.
Iowa Aug. 18, 2017) (citation and internal quotation marks omitted). The Court may
affirm the ALJ’s decision, even without an opinion from a treating or examining source,
if there is other medical evidence demonstrating the claimant’s ability to function in the
workplace. Id.; see also Agan v. Astrue, 922 F. Supp.2d 730, 756 (N.D. Iowa 2013)
(upholding ALJ’s decision where the ALJ’s decision was supported by substantial
evidence on the record as a whole, even though the ALJ did not rely on the opinion of a
treating physician in formulating his opinion). “The question is whether there is sufficient
evidence of ‘how [the claimant’s] impairments . . . affect [her] residual functional
capacity to do other work,’ or her ‘ability to function in the workplace.’” Morrow, 2017
WL 3581014, at *7 (omission and alteration in original) (quoting Hattig v. Colvin, No.
C12-4092 MWB, 2013 WL 6511866, at *11 (N.D. Iowa Dec. 12, 2013)). In the end,
“there is no requirement that an RFC finding be supported by a specific medical opinion.”
Hensley, 829 F.3d at 932 (citing Myers, 721 F.3d at 526-27 (affirming RFC without
medical opinion evidence), and Perks v. Astrue, 687 F.3d 1086, 1092-93 (8th Cir. 2012)
(same)).
Here, the ALJ pointed to several exhibits within the record, which show that
claimant: was capable of independent living throughout the adjudicative period; worked
two jobs and applied for a position for which he was ultimately not hired due to
background check issues; and was physically and mentally able to perform personal care

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tasks, prepare simple meals, and travel out of state. (AR 113-14). Specifically regarding
claimant’s physical health, the ALJ pointed to medical evidence throughout the record
supporting grossly intact “motor strength, sensation, reflexes, and a normal gait.” (AR
114). Similarly, the ALJ identified mental health medical evidence supporting the finding
that although claimant suffered from the medically determinable impairments of
depression and anxiety, claimant’s mental status was “generally unremarkable” and
claimant’s depression was “largely situational, stemming from psychosocial and
economic stressors.” (AR 114). Here, I find that the ALJ cited sufficient medical
evidence to establish that claimant retains the RFC to do other work, despite the record
lacking a treating or examining physician’s medical opinion. (AR 114).
Claimant also argued that, based on a recent Eighth Circuit ruling, Combs v.
Berryhill, 878 F.3d 642, 647 (8th Cir. 2017), the ALJ committed a reversible error when
she applied her own reasoning when interpreting non-examining opinions. (Doc. 14, at
17). In Combs, the ALJ credited the medical opinion of one reviewing physician over
that of another reviewing physician. Combs, 878 F.3d at 646-47.
Here, unlike in Combs, the ALJ was not faced with two contradictory opinions,
but was instead presented with two state agency experts who provided similar opinions
based on a review of the medical evidence. (AR 114). Additionally, the ALJ relied on
the entirety of the record in her decision, not just the two non-examining state experts,
when she found that claimant was not disabled. (AR 114). The ALJ noted that the state
agency consultants, although experts, had limited exposure to claimant.

(AR 114).

Therefore, the ALJ granted their opinions only partial weight where appropriate and did
not “rel[y] heavily on their opinions in determining . . . the [RFC].” (Id.). Further, the
two state agency consultants, after reviewing all available medical evidence,
independently arrived at the same RFC. (See AR 76-80, 94-96). I find that the ALJ did

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not erroneously discount one expert opinion and grant improper weight to the other
opinion.
Claimant additionally argues that the state agency consultants’ opinions were
inaccurate because they were unable to review new medical evidence regarding claimant’s
back pain and subsequent surgery. (Doc 14, at 16). Claimant, however, “has the burden
to establish [his] RFC.” Eichelberger, 390 F.3d at 591 (citing Masterson v. Barnhart,
363 F.3d 731, 737 (8th Cir. 2004)). It seems likely that post-operative medical evidence
would not have been available for the ALJ’s review because claimant’s lumbar
laminectomy back surgery occurred approximately six weeks prior to claimant’s hearing
with the ALJ, which likely would not provide adequate time for such evidence to be
generated. (AR 23, 643). Yet, when claimant appealed to the Appeals Council five
months after the ALJ’s decision, claimant provided no new or material evidence that
claimant’s condition had degraded at the time of the ALJ’s decision in June 2016. (AR
319-21). In contrast, claimant showed his ability to augment the record when claimant
provided Ms. Miller’s statement to the Appeals Council as new evidence. (Id.). I find
that because the ALJ did account for claimant’s alleged back pain when she determined
claimant’s RFC (AR 109-10), claimant’s alleged back pain was not a crucial issue that
was undeveloped. Therefore, I find that the ALJ was under no duty to seek additional
evidence to augment the record. Stormo, 277 F.3d at 806.
As previously stated, the RFC is based on all relevant medical and other evidence.
Eichelberger, 390 F.3d at 591. Ultimately, the ALJ pointed to several exhibits within
the record, which showed that claimant: was capable of independent living throughout
the adjudicative period; had worked two jobs and applied for a position for which he was
ultimately not hired due to background check issues; and was physically and mentally
able to perform personal care tasks, prepare simple meals, and travel out of state. (AR
113-14). The medical record contains dozens of treatment notes detailing claimant's

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physical and mental limitations. I find that the ALJ considered the medical records and
notes of several treating physicians and other medical sources, and claimant’s own
testimony regarding his daily activities in determining that claimant had the RFC to do
limited light work. Thus, despite the recording lacking a statutorily-defined “medical
opinion,” I find that the ALJ’s decision is supported by substantial evidence on the record
as a whole.
VI.

CONCLUSION

Therefore, I respectfully recommend that 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 27th day of July, 2018.

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

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