Ware v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS re 3 Complaint recommending that the District Court reverse the ALJ's decision and remand the case for further proceedings consistent with this Report and Recommendation. Objections to R&R due by 2/26/2018. Signed by Chief Magistrate Judge CJ Williams on 2/12/2018. (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
DELISA M. WARE,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Plaintiff, Delisa M. Ware (“claimant”), seeks judicial review of a final decision
of the Commissioner of Social Security (“the Commissioner”) denying her application
for disability insurance benefits and supplemental security income under the Social
Security Act. She contends that the Administrative Law Judge (ALJ) who heard her
claim erred in determining that she was not disabled. For the reasons that follow, I
recommend that the District Court reverse the Commissioner’s decision and remand the
case for further proceedings.
I adopt the facts set forth in the parties’ Joint Statement of Facts and therefore only
summarize the pertinent facts here. (Doc. 13). Claimant was born in May 1970, making
her forty-three years old when she allegedly became disabled and forty-six years old at
the time of the ALJ’s decision. (AR 28, 30).1 Claimant graduated from high school and
earned an associate’s degree. (Id.). Her past relevant work included fast food manager
and production worker. (Id.).
“AR” refers to the administrative record below.
On March 11, 2014, claimant filed an application for disability insurance benefits.
(AR 22; Doc. 13, at 1). She alleged a disability onset date of December 18, 2013. (Id.).
The Social Security Administration denied the instant claim initially and on
reconsideration. (AR 144-54, 157-69). On April 20, 2016, Administrative Law Judge
Eric S. Basse held a hearing on the matter. (AR 36-70). Claimant offered testimony and
was represented by counsel. (Id.).
Testimony was also heard from Julie Svec, a
vocational expert. (AR 62-68). On June 1, 2016, the ALJ issued a decision denying the
claim. (AR 22-30). On May 23, 2017, the Appeals Council denied review. (AR 1-5).
The ALJ’s decision therefore became the final decision of the Commissioner. See 20
C.F.R. § 416.1481.
On August 2, 2017, claimant timely filed the instant complaint in this Court. (Doc.
3). By January 22, 2018, the parties had filed their briefs. (Docs. 14-16). On January
23, 2018, the Court deemed the case fully submitted and ready for decision. The
Honorable Leonard T. Strand, Chief United States District Judge, referred this case to
me for a Report and Recommendation.
DISABILITY DETERMINATIONS AND 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 Social
Security 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.
§ 416.920(a)(4)(i). “Substantial” work activity involves physical or mental activities.
(Id. § 404.1572). “Gainful” activity is work done for pay or profit, even if the claimant
did not ultimately receive pay or profit. (Id.).
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.
Id. § 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. 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); 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
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 the 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. (Id. § 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 . . .
her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir.
2003) (internal quotation marks omitted). The RFC is based on all relevant evidence.
The 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
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. 20 C.F.R. §§ 416.920(a)(4)(v), 416.960(c)(2). 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 fairly and fully developing the record before making a determination
about the existence of a disability. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004).
The burden of persuasion to prove disability remains on the claimant.
Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
THE ALJ’S FINDINGS
The ALJ made the following findings at each step with regard to claimant’s
At Step One, the ALJ found that claimant had not engaged in substantial gainful
activity during the period from her alleged onset date through her date last insured. (AR
At Step Two, the ALJ found that claimant suffered from the following severe
impairments: “cervical degenerative disc disease, status-post fusion; mild lumbar
degenerative disc disease; fibromyalgia syndrome; schizophrenia; status-post right
shoulder rotator cuff tear; a history of drug abuse; and asthma by report.” (AR 25). The
ALJ also noted that other impairments were mentioned in the record (including
osteoarthritis of the right knee, and abdominal pain and constipation), but found these
were non-severe in nature. (Id.).
At Step Three, the ALJ found that none of claimant’s impairments met or equaled
a presumptively disabling impairment listed in the regulations. (AR 25-26).
At Step Four, the ALJ found that claimant retained the RFC required to perform
light work, subject to the following additional restrictions:
[Claimant] can only occasionally climb, balance, stoop, kneel, crouch and
crawl; can occasionally lift overhead bilaterally; should avoid concentrated
exposure to extreme heat and cold; and should avoid concentrated exposure
to pulmonary irritants. She can perform simple repetitive tasks and
understand short simple instructions. She can perform work not involving
the public and should avoid large crowds. She can perform work involving
occasional contact with coworkers and supervisors, and not involving a
production rate pace.
(AR 26). Based on this RFC determination, the ALJ determined that claimant was unable
to perform her past relevant work. (AR 28).
At Step Five, the ALJ found that, despite claimant’s RFC, there were jobs that
existed in significant numbers in the national economy claimant could still perform,
including pricer, folder, and sorter. (AR 29). Therefore, the ALJ concluded that
claimant was not under a disability at any time between her alleged onset date and her
date last insured. (AR 30).
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 (internal quotation marks
omitted). The Eighth Circuit Court of Appeals explains the standard as “something less
than the weight of the evidence . . . [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). 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 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.”).
Claimant argues that the ALJ erred in a number of respects. First, she argues the
ALJ erred in finding that her knee osteoarthritis was non-severe. (Doc. 14, at 4-6).
Second, claimant argues the ALJ’s decision was not supported by substantial evidence
because the ALJ “failed to notice Dr. Cromer’s opinions” concerning claimant’s RFC
“for the period from April 1, 2014, to the present.” (Doc. 14, at 6-8). Third, claimant
argues the ALJ erred by “failing to provide good reasons for assigning little weight to
Dr. Farrell’s opinions,” which claimant argues should have been given controlling
weight. (Doc. 14, at 8-15). Finally, claimant argues that the ALJ’s findings at Step Five
were erroneous because the ALJ allegedly “failed to resolve the possible conflict between
[the ALJ’s] overhead lifting RFC limitation and the lifting requirements of the other work
identified by the vocational expert.” (Doc. 14, at 15-17). I will address each of these
issues in turn.
Claimant’s Knee Osteoarthritis
Claimant argues that the ALJ erred in finding that her knee osteoarthritis was a
non-severe impairment. Claimant argues that her “right knee issues were increasing
during the relevant period” and that her “primary care physician, Dr. Angela Farrell,
M.D., opined [that claimant’s] ‘bilateral knee osteoarthritis’ was limiting [claimant’s]
ability to walk and/or stand to less than two hours in an 8-hour day” and that, at times,
claimant “needed an assistive device for standing or walking.” (Doc. 14, at 4-5).
Further, claimant argues that the ALJ failed to adequately consider the opinion of Dr.
Gary Cromer, M.D., a nonexamining medical consultant, in not recognizing Dr.
Cromer’s opinion that claimant had not been able to perform the standing or walking
requirements of light work since April 1, 2014. (Doc. 14, at 5-6).
It is the claimant’s burden to establish that his or her impairment or combination
of impairments is severe. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). For
an impairment to be found severe, it must significantly limit the claimant’s ability to
perform basic work activities. See 20 CFR § 404.1521(a). “Severity is not an onerous
requirement for the claimant to meet, but it is also not a toothless standard . . ..” Kirby,
500 F.3d at 708 (internal citation omitted). When a claimant has multiple impairments,
“the Social Security Act requires the Commissioner to consider the combined effect of
all impairments without regard to whether any such impairment, if considered separately,
would be of sufficient medical severity to be disabling.” Cunningham v. Apfel, 222 F.3d
496, 501 (8th Cir. 2000).
In determining the severity of a medically determinable impairment, the ALJ must
consider a claimant’s symptom-related limitations and make a credibility finding on his
or her alleged limitations. See Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001)
(holding that the ALJ erred at Step Two by failing to fully evaluate the claimant’s
subjective complaints); see also SSR 16-2P, 2016 WL 1119029 (Mar. 16, 2016)
(effective Mar. 28, 2016 (SSR 16-3P, 2016 WL 1237954)), at *7-8. Although an ALJ
may conclude that the medical evidence does not support a claimant’s subjective
allegations, this is only one factor that should be considered. See Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir. 1984) (“The absence of an objective medical basis which
supports the degree of severity of subjective complaints alleged is just one factor to be
considered in evaluating the credibility of the testimony and complaints.”). If an ALJ
discredits a claimant’s subjective allegations, he must do so explicitly, and provide
reasons for discrediting the claimant. Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir.
2007) (“An ALJ who rejects such subjective complaints must make an express credibility
determination explaining the reasons for discrediting the complaints” (citation and
internal quotation marks omitted)).
In this case, the ALJ found claimant had been diagnosed with osteoarthritis of the
right knee. (AR 25). A diagnosis of that condition, however, does not itself establish
that the condition significantly limited claimant’s ability to perform basic work activities.
“A diagnosis alone is an insufficient basis for a finding that an impairment is severe.”
Wilber v. Astrue, 09–CV–04235-NKL, 2010 WL 2772313, at *9 (W.D. Mo. July 12,
2010). See also Buckner v. Astrue, 646 F.3d 549, 557 (8th Cir. 2011) (finding that,
although the claimant was diagnosed with depression and anxiety, the diagnoses did not
by themselves mean the conditions were severe).
The ALJ found that despite the
diagnosis, claimant’s gait, station, and balance were routinely found to be normal. (AR
25, 760, 769, 787, 789, 791, 794, 797, 800, 809). The medical records reflect that
claimant consistently had full strength in her legs. (AR 477, 493, 503, 784). They also
reflect normal range of motion in claimant’s right knee. (AR 471, 761, 765, 769, 771,
777). Moreover, the records reflect that treatment by means of injections were effective
in decreasing, but not eliminating, claimant’s pain in her right knee. (AR 760-61, 765,
768, 772, 777, 779, 781). Impairments that are improved through treatment so as to
allow performance of normal work activities are not severe. Phillips v. Colvin, 721 F.3d
623, 631-32 (8th Cir. 2013).
The ALJ also found claimant’s activities were inconsistent with a finding that her
right knee osteoarthritis was severe in the sense that it would significantly limited
claimant’s ability to perform basic work activities. Claimant was able to dust, vacuum,
wash dishes, perform light housework, prepare meals, and shop. (AR 27, 302-303). She
also took care of pets and a grandson, visited family “almost daily,” and attended church.
(AR 27, 269, 301, 304, 400, 731).
In August 2014, Dr. Cromer opined that claimant could perform light work from
December 2013 to March 2014, but that she was reduced to sedentary work from April
2014 onward because of her “ongoing right knee symptoms.” (AR 109-115). In August
2015 and March 2016, claimant’s treating physician, Dr. Angela Farrell, opined that
claimant could only stand and/or walk fewer than two hours per day. (AR 533, 803).
These opinion support Dr. Cromer’s opinion that claimant’s right knee symptoms limited
claimant to sedentary work. Thus, there is medical evidence that would support a finding
that claimant’s right knee osteoarthritis impairment was severe because it significantly
limited her ability to perform basic work activities.
The Commissioner argues that the ALJ considered treatment records that postdated Dr. Cromer’s opinion and that these records showed claimant had full strength,
and normal range, gait, stance and balance in her lower extremities. The Commissioner
further argues that the ALJ therefore had good reason to afford Dr. Farrell’s opinions
little weight. As will be noted, I disagree that the ALJ gave adequate reasons for
affording Dr. Farrell’s opinions little weight.
The fact that the medical records could support a different conclusion regarding
the severity of claimant’s osteoarthritis does not necessarily mean that the ALJ erred.
Substantial evidence in the record as a whole may still support the ALJ’s conclusion.
Nevertheless, because I believe remand is appropriate regarding the ALJ’s inadequate
explanation for the reasons he afforded Dr. Farrell’s opinions little weight, and given
that Dr. Farrell’s opinions are relevant to this issue as well, I find that on remand the
ALJ should further address whether he affords Dr. Farrell’s opinions more weight, and,
if so, whether the greater weight afforded impacts the ALJ’s conclusion that claimant’s
osteoarthritis is non-severe.
Dr. Cromer’s Opinions
Claimant next argues that the ALJ’s decision is not supported by substantial
evidence because the ALJ failed to notice Dr. Cromer’s opinions concerning claimant’s
RFC for the period from April 1, 2014, to the present. (Doc. 14, at 6-8). Claimant
points out that on August 6, 2014, Dr. Cromer opined that from the period of April 1,
2014, to the present, claimant had limitations that included standing and/or walking for
a total of two hours during an eight-hour day, and occasional overhead reaching. (Doc.
14, at 7). Claimant argues the ALJ erred in not including these limitations in claimant’s
To be clear, because Dr. Cromer wrote the report on August 6, 2014, the time
period in question is a four-month period from April 1, 2014, to August 6, 2014. Further,
the ALJ did include in claimant’s RFC that she “can occasionally lift overhead
bilaterally.” (AR 26). Thus confined by these parameters, claimant’s argument is that
the ALJ should have included the standing/walking limitation Dr. Cromer opined was
appropriate during the four-month period included in his examination.
First, claimant’s assertion that the ALJ “failed to notice” this portion of Dr.
Cromer’s opinion is not supported by the record. (Doc. 14, at 6). The Court should
presume an ALJ properly discharged his duties unless there is clear evidence to the
contrary. See Wilburn v. Astrue, 626 F.3d 999, 1003–04. (8th Cir. 2010) (noting that
the Court should presume that an ALJ carried out his official duties absent clear evidence
to the contrary). Indeed, the ALJ noted that he considered “the entire record” and “all
the evidence.” (AR 23, 26). Although not dispositive, this does support a presumption
that the ALJ did, in fact, properly discharge his duties. Further, although the ALJ’s
decision does not reference Dr. Cromer by name, it twice references his report. (AR 25,
28). An ALJ must consider all of the evidence, but is not required to discuss every piece
of evidence. Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010).
Second, even if the ALJ failed to consider this portion of Dr. Cromer’s report, the
Court should not reverse the ALJ’s decision if it was harmless error. An error is harmless
if it would not change the outcome of the ALJ’s decision. See Welsh v. Colvin, 765 F.3d
926, 929 (8th Cir. 2014) (holding that ALJ’s failure to explicitly consider an applicable
Social Security Ruling “had no practical effect on the decision and therefore [was] not a
sufficient reason to set aside the ALJ’s decision”); 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.”).
It is claimant’s burden to show that the error was not harmless. Id.
Claimant argues the error was not harmless because the ALJ did not include the
limitation in the hypothetical question posed to the vocational expert. (Doc. 14, at 7-8).
A hypothetical question must include limitations found credible by the ALJ and supported
by the medical record. See, e.g., Howe v. Astrue, 499 F.3d 835, 841–42 (8th Cir. 2007);
Pertuis v. Apfel, 152 F.3d 1006, 1007 (8th Cir. 1998). In order to assess whether the
error was harmless, however, the analysis must begin with determining whether
substantial evidence supports the ALJ’s RFC without the additional limitation.
In conducting that analysis, I find remand appropriate because the ALJ’s failure
to give an adequate explanation for giving little weight to Dr. Farrell’s opinions (as
explained below) calls into question whether substantial evidence supports the ALJ’s
exclusion of the standing/walking limitation. If Dr. Farrell’s opinions are deserving of
more weight and that determination affects the limitations, then the error was not
harmless because that limitation was not included in the hypothetical question posed to
the vocational expert.
Dr. Farrell’s Opinions
Claimant argues that the ALJ erred in failing to provide “good reasons for
assigning little weight” to the opinions of Dr. Farrell, claimant’s primary care physician.
(Doc. 14, at 10-12). Claimant further argues that the ALJ should have afforded Dr.
Farrell’s opinions controlling weight. (Doc. 14, at 12-15).
In a Medical Source Statement dated March 3, 2016, Dr. Farrell provided a
number of opinions regarding claimant’s functional limitations. Dr. Farrell opined that
claimant could stand and/or walk fewer than two hours in an eight-hour workday because
of “lumbar disc degeneration and spondylosis L2-L5, bulging discs L1-L5 . . . [and]
bilateral knee arthritis.” (AR 803-04). Dr. Farrell opined that, “at times,” claimant
needed an assistive device to help her ambulate. (AR 804). Dr. Farrell opined that
claimant should never reach overhead with her right hand. (AR 805). Dr. Farrell
explained claimant’s “shoulder injury, degenerative disc disease, osteoarthritis[,] along
w/ fibromyalgia cause[s] significant functional limitation.” (Id.).
In this case, the ALJ found that Dr. Farrell’s opinion “that the claimant could not
work an eight-hour workday” because of physical impairments was “entitled to little
weight because it is inconsistent with the weight of the objective medical findings, as
noted above in discussion of Exhibits 19F and 20F, and others.” (AR 28). Exhibit 19F
is the treatment records from the University of Iowa Hospitals and Clinics (where Dr.
Farrell worked) for the period of February 4, 2013, to February 5, 2016. (AR 696-758).
Exhibit 20F is the treatment records from Pain Associates from July 3, 2014, to February
26, 2016. (AR 759-802).
In his written decision, the ALJ discussed Exhibits 19F and 20F with regard to
two issues. First, the ALJ cited Exhibit 19F in concluding that claimant’s abdominal
pain and constipation were not severe impairments. (AR 25). Claimant is not arguing
the ALJ erred in that conclusion, so the ALJ’s reference to Exhibit 19F is irrelevant as
to the standing/walking limitation.
The ALJ cited Exhibit 20F in discussing his
conclusion that claimant’s right knee osteoarthritis was not a severe impairment and to
show that that claimant had a normal gait, station, and balance. (Id.).
The ALJ again discussed Exhibits 19F and 20F in concluding that “claimant’s
statements concerning the intensity, persistence and limiting effects of these symptoms
are not entirely consistent with the medical evidence and other evidence in the record.”
In referencing Exhibit 19F, the ALJ noted that claimant “underwent
arthroscopy and rotator cuff debridement with distal clavical excision in November 2015.
. . . However, her most recent examination by a physician recorded no abnormal findings
of her neck, lungs, back, or shoulder.” (Id.). Again, the citation to Exhibit 19F is
irrelevant to the issue of whether the medical records are inconsistent with Dr. Farrell’s
standing/walking limitation. The ALJ cited Exhibit 20F for the proposition that “[i]n
February 2015, examination found a normal gait, station and balance.” (Id.).
“A treating physician’s opinion is given controlling weight if it ‘is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [a claimant’s] case record.’” Halverson
v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010) (alteration in original) (internal quotation
marks omitted) (quoting Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009)); 20 C.F.R.
§ 404.1527(d)(2). “When a treating source’s opinion is not controlling, it is weighed by
the same factors as any other medical opinion: the examining relationship, the treatment
relationship, supporting explanations, consistency, specialization, and other factors.”
Lehnartz v. Barnhart, 142 Fed. App’x 939, 940 (8th Cir. 2005). An ALJ must “give
good reasons” for the weight afforded to the treating physician's opinion. 20 C.F.R. §
See also Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)
(“Whether the ALJ grants a treating physician's opinion substantial or little weight, the
regulations provide that the ALJ must ‘always give good reasons' for the particular weight
given to a treating physician's evaluation.”).
I find the ALJ’s explanation for discounting the weight given to Dr. Farrell’s
opinion regarding claimant’s standing/walking limitation is inadequate.
references to Exhibit 19F are wholly irrelevant to the issue. The ALJ’s references to
Exhibit 20F are, at most, clues as to what the ALJ found inconsistent between then and
Dr. Farrell’s opinion. The ALJ does not explain how he found inconsistencies between
claimant’s normal gait, station, and balance and Dr. Farrell’s opinion regarding how long
claimant could stand and walk in an eight-hour workday. The ALJ fails to cite any
medical records or opinions that demonstrates that these are inconsistent. It is not
sufficient for the ALJ to simply pronounce they are inconsistent; to do so creates the
appearance of the ALJ “playing doctor.” Pate–Fires v. Astrue, 564 F.3d 935, 946-47
(8th Cir. 2009).
The ALJ found claimant has the severe impairments of cervical degenerative disc
disease, mild lumbar degenerative disease, and fibromyalgia. (AR 25). With these
impairments come pain, as reflected in Dr. Farrell’s medical treatment records. The ALJ
has failed to explain how claimant’s normal gait, station and balance means that she does
not suffer such pain from these conditions that it would prevent her from standing or
walking for more than two hours in a day.
Finally, the ALJ’s reference to “other” exhibits in discounting the weight he
afforded to Dr. Farrell’s opinion is of no assistance. (AR 28). The ALJ provided no
reference to any specific medical records, nor any indication of what he believed those
records showed and how they were inconsistent with Dr. Farrell’s opinion. On review,
the Court cannot evaluate the soundness of the ALJ’s conclusions based on unidentified
“other” exhibits and when the ALJ fails to explain how those other unidentified records
are inconsistent with a treating physician’s opinion.
Therefore, I respectfully recommend the Court reverse the ALJ’s decision and
remand this case to require the ALJ to provide a full explanation of why he afforded the
opinion of claimant’s treating physician little weight regarding the standing/walking
The Overhead Lifting Limitations
Finally, claimant argues that the ALJ erred at Step Five when he failed to inquire
into a possible conflict between the Dictionary of Occupational Titles (DOT) and the
Selected Characteristics of Occupations (SCO) as it related to restrictions on overhead
lifting. (Doc. 14, at 15-17). The ALJ found claimant’s RFC included her ability to
perform light work with occasional lifting overhead bilaterally. (AR 26). The vocational
expert found claimant could perform the jobs of pricer, folder, or sorter, but claimant
argues that these jobs require an ability to “lift at all levels, including overhead, 10
pounds frequently.” (Doc. 14, at 16). Claimant argues the ALJ should have inquired
into the apparent conflict between that requirement and the ALJ’s restriction on overhead
In Kemp ex. Rel. Kemp v. Colvin, 743 F.3d 630 (8th Cir. 2014), the Eighth Circuit
Court of Appeals stated that an “ALJ has an affirmative responsibility to ask about ‘any
possible conflict’ between VE evidence and the DOT, and its companion publication (the
SCO), on the requirements of a job or occupation before relying on VE evidence to
support a determination of not disabled.” 743 F.3d at 633 (quoting Social Security Ruling
00—4p, 2000 WL 1898704, at *2-4 (Dec. 4, 2000)). In Kemp, as here, “the record does
not reflect whether the VE or the ALJ even recognized the possible conflict between the
hypothetical describing a claimant who could reach overhead only occasionally,” and the
descriptions of the jobs the vocational expert concluded claimant could perform. Id.
The Commissioner argues, however, that there is no conflict. The Commissioner
argues that each of the jobs (pricer, folder, and sorter) require lifting of up to 10 pounds,
but the DOT description of the jobs do not indicate a need for lifting the 10 pounds over
the head or more than occasional overhead reaching. (Doc. 15, at 16-17). My review
of the DOT descriptions (pricer, 1991 WL 672104; folder, 1991 WL 673072; and sorter,
1991 WL 672104) supports the Commissioner’s argument. Although claimant argues
that these jobs require an ability to “lift at all levels, including overhead, 10 pounds
frequently,” (Doc. 14, at 16), she provides no citation to support the assertion.
This case is distinguishable from Kemp. In Kemp, the DOT description did reveal
an apparent conflict regarding the degree of reaching involved in that job. Here, there
is no conflict apparent on examination of the DOT descriptions.
This case is also
distinguishable from Thomas v. Berryhill, No. 16-4559, 2018 WL 704215 (8th Cir. Feb.
5, 2018). In Thomas, the court found that “the expert testified that the hypothetical
individual was qualified to handle a job that the DOT classifies as two reasoning levels
higher than the limitations in her RFC.” Thomas, 2018 WL 704215, at *3. Here, again,
the DOT descriptions do not, on their face, indicate that claimant would be required to
lift more than 10 pounds over her head frequently, as claimant argues.
The Commissioner further points out that the DOT descriptions are not definitive
because jobs may be performed in different ways. Wheeler v. Apfel, 224 F.3d 891, 897
(8th Cir. 2000). This argument is not persuasive, however; certainly not without a
vocational expert explicitly addressing this issue as a basis for resolving an apparent
conflict. Thomas, 2018 WL 704215, at *4.
Therefore, I find that the ALJ posed a proper hypothetical question to the
vocational expert, properly relied on the expert’s testimony, and that there was no
apparent conflict requiring an investigation between the ALJ’s RFC and the jobs the
vocational expert identified that claimant could perform.
For the foregoing reasons, I respectfully recommend that the District Court
reverse the ALJ’s decision and remand the case for further proceedings consistent with
this Report and Recommendation. The 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 12th day of February, 2018.
Chief United States Magistrate Judge
Northern District of Iowa
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