Porter v. Commissioner of Social Security

Filing 22

ORDER: Accepting 19 Report and Recommendation: The Commissioner's determination that Plaintiff Porter was not disabled is affirmed: Judgment shall enter against Plaintiff Porter and in favor of the Commissioner. Signed by Chief Judge Leonard T Strand on 06/25/18. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
DAWN M. PORTER,
Plaintiff,

No. C17-0110-LTS

vs.
NANCY A. BERRYHILL,
Deputy Commissioner of Operations,1

MEMORANDUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION

Defendant.
___________________________
I.

INTRODUCTION

This case is before me on a Report and Recommendation (R&R) by the Honorable
C.J. Williams, Chief United States Magistrate Judge. See Doc. No. 19. Judge Williams
recommends that I affirm the decision of the Commissioner of Social Security (the
Commissioner) denying plaintiff Dawn M. Porter’s application for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq.
Porter filed timely objections (Doc. No. 20) to the R&R, and the Commissioner
has responded (Doc. No. 21). The procedural history and relevant facts are set forth in
the R&R and are repeated herein only to the extent necessary.

1

On March 6, 2018, the Government Accountability Office stated that as of November 17, 2017,
Nancy Berryhill’s status as Acting Commissioner violated the Federal Vacancies Reform Act (5
U.S.C. § 3346(a)(1)), which limits the time a position can be filled by an acting official. As of
that date, therefore, she was not authorized to continue serving using the title of Acting
Commissioner. As of November 17, 2017, Berryhill has been leading the agency from her
position of record, Deputy Commissioner of Operations. For simplicity, I will continue to refer
to the defendant as “the Commissioner” throughout this order.

II.
A.

APPLICABLE STANDARDS

Judicial Review of the Commissioner’s Decision
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 also 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 v. Barnhart, 353 F.3d 642,
645 (8th Cir. 2003). The Eighth Circuit 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).
To determine whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but [it does] not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). 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 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)).
To evaluate 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) (citing Naber v. Shalala, 22 F.3d 186, 188
2

(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 if [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 also Goff v. Barnhart, 421 F.3d 785,
789 (8th Cir. 2005).
B.

Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following

standards:
Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations
as provided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to
any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed
under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that when no objections are filed the district court judge
“would only have to review the findings of the magistrate judge for clear error”). As
the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although there
3

is evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)). However, a district judge may elect to review an R&R under a moreexacting standard even if no objections are filed:
Any party that desires plenary consideration by the Article III judge of any
issue need only ask. Moreover, while the statute does not require the judge
to review an issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
III.

THE R&R

Porter alleged disability based on depression, anxiety, personality disorders and
substance abuse/addiction disorders. AR 14. The record also demonstrates diagnoses of
diabetes mellitus and dermatitis/psoriasis. Id. In support of her claim, Porter submitted
a residual functional capacity (RFC) opinion by her treating psychologist, Laura Lundell,
Psy.D. AR 606-08. Although Dr. Lundell opined that Porter had disabling symptoms
as a result of her mental health diagnoses, the ALJ gave “little weight” to this opinion
and determined that Porter retained the RFC to work. At issue is (1) whether the ALJ
erred in attributing little weight to Dr. Lundell’s opinions and (2) whether the appeals
council erred in failing to properly evaluate new and material evidence from Dr. Lundell.
See Doc. No. 13.
After summarizing Dr. Lundell’s RFC opinion and considering the standard for
evaluating a treating physician’s RFC opinion, Judge Williams found that the ALJ offered
good reasons for giving the opinions little weight:
I find the ALJ properly discounted the weight he afforded to Dr.
Lundell’s opinions. First, the ALJ correctly concluded that Dr. Lundell’s
opinions were not well reasoned, lacked analysis, and were unsupported by
citation to signs and laboratory reports. In her November 2016 opinion,
4

Dr. Lundell opined that claimant met the criteria for Listing 12.06, Anxietyrelated disorders, but did not explain how she reached this conclusion. (AR
589, 90). Although Dr. Lundell briefly discussed claimant’s diagnoses of
PTSD and amphetamine use disorder, Dr. Lundell did not explain how the
existence of the two diagnoses led her to conclude that claimant met Listing
12.06, and the relationship is not readily apparent.
Second, the ALJ correctly noted that Dr. Lundell’s opinion that
claimant’s impairments met the requirements for a listed impairment
invaded the Commissioner’s province. See House v. Astrue, 500 F.3d 741,
745 (8th Cir. 2007) (“A treating physician’s opinion that a claimant is
disabled or cannot be gainfully employed gets no deference because it
invades the province of the Commissioner to make the ultimate disability
determination.”).
Third, the ALJ correctly found that Dr. Lundell’s opinions were
inconsistent with psychiatric records and evaluations performed by Ms.
Allen-Benitz. In contrast to Dr. Lundell’s significant limitations regarding
work-like procedures, Ms. Allen-Benitz noted during the same timeframe
that claimant was “Alert and oriented to all spheres. Recent and remote
memory appears intact. No evidence of current hallucinations, delusions,
paranoia, and obsessions. Thought process is linear, logical, and goaldirected. Denies current suicidal or homicidal thoughts, plan, or intent.
Judgment, reasoning, and insight are considered fair. Impulse control is
considered fair.” (AR 592). In October 2013, Ms. Allen-Benitz noted very
similar findings and added that claimant appeared to be of at least average
intelligence. (AR 569). Further, Dr. Lundell’s own records are
inconsistent with her opinions.
Claimant reported assisting her
stepdaughter in the stepdaughter’s salon (AR 594), had started an Etsy
business with her stepdaughter (id.), had travelled to Minnesota (AR 595),
reported improvement following a change in her living situation (id.), and
was dating. (AR 596). The ability to engage in activities of this sort are
inconsistent with the disabling anxiety to which Dr. Lundell opined.
Importantly, there is substantial evidence in the record as a whole to
support the ALJ’s RFC assessment. Where an ALJ does not rely on
opinions from treating or examining sources, there must be some other
medical evidence in the record for the ALJ’s opinion to be supported by
substantial medical evidence on the record. Harvey v. Barnhart, 368 F.3d
1013, 1016 (8th Cir. 2004). “However, there is no requirement that an
RFC finding be supported by a specific medical opinion.” Hensley v.
Colvin, 829 F.3d 926, 932 (8th Cir. 2016).
5

The ALJ did rely on other such medical evidence in assessing
claimant’s RFC. The ALJ afforded great weight to the state agency medical
and psychological consultants. (AR 24). The psychological consultants
found that claimant had affective disorders, anxiety disorders, personality
disorders, and substance addiction disorders, all of which the consultants
considered to be severe impairments. (Id.). Further,
[t]he psychologists found the claimant would have mild
restrictions in daily activities, moderate difficulties
maintaining social functioning, moderate difficulties
maintaining concentration, persistence or pace, and no
episodes of decompensation. Functionally, the consulting
psychologists opined the claimant would have some difficulty
concentrating for extended periods, remembering,
understanding, and carrying out detailed instructions, and
would experience some difficulty interacting appropriately
with others at times. However, the psychologists opined the
claimant retained the capacity to perform simple, repetitive
tasks consisting of 1-2 step commands in a work setting with
reduced social interaction.
(Id.). In addition to the consultants, the ALJ considered medical records
from David Fox, LISW, who “noted impressions of posttraumatic stress
disorder, adjustment disorder with anxiety, amphetamine dependence, and
a GAF score of 48.” (AR 18). As noted above, the ALJ also considered
the opinions of Ms. Allen-Benitz and afforded Dr. Lundell’s opinions little
weight, which is greater than no weight.
The ALJ also considered the records obtained from Courtney
Hoelscher, ARNP (AR 19), Rogerio Ramos, M.D. (Id.), and Daniel
Courtney, Ph.D. (AR 19-20), though the ALJ did not engage in an in-depth
discussion of the findings of any of the aforementioned. Even if the ALJ
did not rely on the records of the three final practitioners in assessing
claimant’s RFC, and instead merely noted the existence of the records, I
would still find that the ALJ’s decision is supported by substantial evidence
on the record as a whole. The assessments from the state agency consultants
are highly probative on claimant’s disability status, as are Ms. AllenBenitz’s notes, and Dr. Lundell’s notes, even though the ALJ discounted
the weight afforded to the latter. As such, I recommend that the Court find
that the ALJ did not err in assessing claimant’s RFC. Further, I recommend
that the Court find that the ALJ’s decision is supported by substantial
evidence on the record as a whole.
6

Doc. No. 19 at 11-13.
Next, Judge Williams addressed whether the Appeals Council erred by failing to
consider new and material evidence from Dr. Lundell when it declined to review the
ALJ’s decision. He first concluded that “the Court does not have jurisdiction to review
the Appeals Council’s decision denying review.” Id. at 14 (citing Piepgras v. Chater,
76 F.3d 233, 238 (8th Cir. 1996)). Judge Williams then stated:
Even if this Court did have jurisdiction to review the Appeals
Council’s action, I would still recommend that the Court uphold the final
decision of the Commissioner. Although the letter explains the difference
between psychotherapy notes and disability certifications, the letter does
not address the marked differences and inconsistencies with other medical
evidence of record and with claimant’s own subjective allegations. Further,
Dr. Lundell’s letter, much like her treatment notes, lacks analysis and is
vague. For instance, Dr. Lundell does not identify the psychotherapy notes
she is addressing when explaining why differences may exist. Perhaps Dr.
Lundell means all of the psychotherapy notes, but it is simply unclear. As
a result, while Dr. Lundell’s letter is beneficial from a general knowledge
standpoint, it is of little probative value with respect to claimant’s case
specifically.
Id. at 14-15. Judge Williams recommends that I affirm the ALJ’s decision. Id. at 15.
IV.

DISCUSSION

Porter objects to Judge Williams’ conclusion that the ALJ properly evaluated Dr.
Lundell’s RFC opinion. Porter further objects that Judge Williams did not address her
argument that the ALJ erred in failing to fully and fairly develop the record by ordering
a consultative report. I will review those issue de novo.
Porter does not object to Judge Williams’ conclusions regarding the Appeals
Council’s treatment of Dr. Lundell’s clarification letter.
conclusions, clear or otherwise.

7

I find no error in those

A.

Dr. Lundell’s Opinion
Porter argues that the ALJ erred in giving Dr. Lundell’s RFC opinion little weight

and contends that accepting the opinion would result in a finding that she is disabled.
The ALJ’s RFC opinion is only slightly less restricting that Dr. Lundell’s RFC opinion.
Specifically, the ALJ found that Lundell had the following non-exertional limitations:
The claimant is limited to unskilled work in that she is able to understand,
remember, and carry out only routine, repetitive tasks. The claimant should
have no more than occasional interaction with coworkers and the general
public. The claimant is able to maintain focus, attention, and concentration
for only up to two hours at a time. There should be no more than occasional
changes in the general nature of the work setting or work tasks.
AR 16. The Vocational Expert (VE), Melinda Stahr, testified that a hypothetical person
with the above RFC would be able to work at jobs such as hand packager, clean-up
worker and car detailer. AR 61.
Similarly, Dr. Lundell opined that Porter is “seriously limited, but not precluded”
in her ability to:
Remember work-like procedures[;]
Understand and remember very short and simple instructions[;]
Carry out very short and simple instructions[;]
Maintain attention for two hour segment[;]
Sustain an ordinary routine without special supervision[;]
Work in coordination with or proximity to others without being unduly
distracted[;]
Ask simple questions or request assistance[;]
Deal with normal work stress[; and]
Understand and remember very short and simple instructions[.]
AR 607. So far, then, the two opinions track each other. Dr. Lundell also concluded
that Porter would be “[u]nable to meet competitive standards” in attendance, workplace
decision making, pace, responding to criticism and travel to unfamiliar places. AR 6088

09. Notably, Dr. Lundell opined that Porter would miss four or more days of work per
month, a condition which, standing alone, precludes competitive employment in any job.
AR 62. Dr. Lundell attributed the above limitations to the dissociative symptoms caused
by Porter’s PTSD:
Ms. Porter has experience numerous, significant, traumatic experiences
throughout her life beginning as a young child which include: physical,
emotional, sexual and verbal abuse as well as domestic violence.
Additionally, in December, 2012, Ms. Porter’s husband died by suicide—
an image that she cannot get out of her mind. This accumulation of trauma
and the negative consequence of such experience is enough to be considered
complex trauma. Ms. Porter’s experience with complex trauma includes
dissociative episodes in which she feels disconnected from reality,
concentration and memory difficulties, paranoia, flashbacks and associated
avoidance of a multitude of trauma triggers. The complex trauma and its
consequences result in marked restriction of social functioning, repeated
episodes of prolonged decompensation and marked difficulties in
maintaining concentration.
AR 589. The ALJ’s RFC does not include Dr. Lundell’s restrictions related to pace,
criticism and attendance.
An opinion by a treating physician must be 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.” Papesh v. Colvin, 786 F.3d 1126,
1132 (8th Cir. 2015) (citation omitted); see also 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). The ALJ must give “good reasons . . . for the weight [the ALJ gives a]
treating source’s medical opinion.” 20 C.F.R. § 404.1527(c)(2); see also Singh v. Apfel,
222 F.3d 448, 452 (8th Cir. 2000). By contrast, a consulting expert’s opinion is generally
entitled to less weight and will normally not constitute substantial evidence, particularly
where the opinion is inconsistent with the record as a whole. Cantrell v. Apfel, 231 F.3d
1104, 1107 (8th Cir.2000); Cowles v. Colvin, 102 F. Supp. 3d 1042, 1055 (N.D. Iowa
2015).
It is the ALJ’s duty to assess all medical opinions and determine the weight to be
given these opinions. See Finch, 547 F.3d at 936 (“The ALJ is charged with the
9

responsibility of resolving conflicts among medical opinions.”); Estes v. Barnhart, 275
F.3d 722, 725 (8th Cir. 2002) (“It is the ALJ’s function to resolve conflicts among the
various treating and examining physicians.”) (citation omitted). However, any
physician’s conclusion regarding a claimant’s RFC addresses an issue that is reserved for
the ALJ. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005). The ALJ’s RFC finding
must be “based on all of the relevant evidence, including the medical records,
observations of treating physicians and others, and an individual’s own description of
limitations,” but “there is no requirement that an RFC finding be supported by a specific
medical opinion.” Hensley v. Colvin, 829 F.3d 926, 931-31 (8th Cir. 2016). If the
ALJ’s RFC is within the “zone of choice” permitted by the evidence, the court must
affirm. Culbertson, 30 F.3d at 939.
Although there is some medical evidence to support Dr. Lundell’s non-exertional
limitations, nothing in the record suggests that Porter will be absent from work four or
more days a month, or that she will be unable to meet competitive standards for pace.
Porter’s treatment record suggests that her largest issues are methamphetamine abuse and
concomitant legal troubles. Porter first sought treatment for her mental health issues in
October 2013, when she was ordered to do so by a court.2 AR 343. During her first
appointment at Prairie Ridge on October 10, 2013, Porter reported long-standing
struggles with depression, substance abuse, adult attention-deficit/hyperactivity disorder
(ADHD), obsessive compulsive disorder (OCD), and anxiety.3 AR 344. Porter stated
that she did not want medication as she felt “it makes her feel worse.”4 AR 351. The

2

The treatment notes from this time period indicate that Porter reported seeing therapists since
she was a teenager, as well as receiving outpatient mental health treatment for her substance
abuse issues. However, records were not provided for mental health treatment prior to October
2013. AR 343-44.

3

Dr. Lundell’s treating source opinion limits Porter’s diagnoses to substance abuse disorder and
PTSD. See AR 589-90, 607-09.

4

Nevertheless, Porter reported that she began to take Zoloft from an “old prescription,” against
her therapist’s advice, on November 8, 2013. AR 364-65. Dr. Hansen counseled Porter against

10

licensed social worker completing the intake assessment agreed that she did not need a
referral for medication management and scheduled weekly therapy to address her
situational stressors. At this time, Porter’s mental status was assessed and found to be
negative for delusions, paranoia and hallucinations.

AR 353. She was described as

motivated, alert and oriented, although she was anxious and depressed during the exam.
AR 354.
Porter began therapy as scheduled on October 21, 2013, with Jen Hansen, Ph.D,
and attended a total of eight individual therapy sessions between October 21 and February
28, 2014.

AR 358-70.

Although she repeatedly endorsed difficulties related to

bereavement, depression and trauma, the majority of the therapy sessions involved
discussion of her ongoing problems attempting to regain custody of her children from
DHS. AR 362, 365, 368, 370. In spite of the stressors in her life, Porter was repeatedly
assessed as oriented, with appropriate attire, adequate hygiene, and active or motivated
involvement in her therapy sessions.

Dr. Hansen noted no evidence of psychotic

symptoms, or suicidal or homicidal ideation. This is consistent with the December 6,
2013, mental status evaluation performed by Allen-Benitz:
Mood is anxious, pleasant, with congruent affect and brightening in
conversation. Eye contact is good. Speech is pressured. She is interactive
and cooperative. Alert and oriented to all spheres. Recent and remote
memory appears intact. Intelligence appears at least average. No evidence
of current hallucinations, delusions, paranoia, and obsessions. Thought
this choice, and at a later appointment Dr. Hansen noted that Porter had lied to DHS and stated
she had a current prescription for Zoloft. Id. at 365. On December 6, 2013, Porter was seen
by Shelby Allen-Benitz, ARNP, for medication management. Id. at 358. At that appointment,
Porter denied using any psychotropic medications and was ultimately prescribed Zoloft. Id. at
360. One month later, on January 3, 2014, Dr. Hansen noted that Porter had failed to re-start
Zoloft. Id. at 367. On January 31, she reported that she still was not taking Zoloft because she
“didn’t like the way it was making her feel.” Id. at 368. One month later, on February 28,
2014, she requested to be prescribed Xanax. Id. at 370. It is not apparent from the medical
records whether she was prescribed or ever began taking Xanax. Porter’s dishonesty regarding
her medication use, as well as her failure to appropriately use medications when prescribed, are
“good reasons” the ALJ may rely upon to discount an inconsistent treating source opinion. Owen
v. Astrue, 551 F.3d 233, 236 (8th Cir. 1996).

11

process is circumstantial with easy redirection. Denies current suicidal or
homicidal thoughts, plan, or intent. Judgment, reasoning, and insight are
considered fair. Impulse control is fair. Denies being the subject or
perpetrator of violence in any environment.
AR 360. The lack of recorded cognitive impairments in 2013 is inconsistent with Dr.
Lundell’s opinion regarding Porter’s ability to meet competitive standards for pace and
concentration, and constitute a good reason to discount that portion of the opinion. See
Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (ALJ entitled to discount opinions
that are inconsistent with or contrary to medical evidence as a whole); Garza v. Barnhart,
397 F.3d 1087, 1089 (8th Cir. 2005) (physician’s mild examination findings were
inconsistent with extreme limitations referenced in RFC opinion, and constituted a good
reason to give the physician’s opinion less weight).
Porter did not receive any further mental health treatment until September 18,
2015, when she was admitted to the emergency room for alcohol and methamphetamine
intoxication. AR 400. After discharge, she was voluntarily admitted to a psychiatric
hospital.

AR 411.

Upon her admission, her mental status was positive for sleep

disturbance but negative for suicidal ideas and hallucinations. AR 414. Porter stated
that she felt depressed but the doctor’s notes indicate that she was not nervous or anxious
during the examination. Id. Judgment, thought content, cognition and memory were all
judged to be normal. AR 415. Porter was again prescribed Zoloft, and underwent a
substance abuse evaluation. AR 422. Porter downplayed her substance abuse problems,
stating that substance abuse is a “small part” of her problems and that she could “take it
or leave it.”

AR 429.

The substance abuse counselor recommended that Porter

participate in inpatient substance abuse treatment but she did not do so. Porter was
discharged after three days with instructions to keep appointments for psychiatric
medications and therapy. AR 411. There are no medical records following discharge
indicating that Porter followed up on this instruction.

12

Non-compliance with a

recommended course of treatment is a good reason to discount a treating source’s RFC
opinion, as well as the claimant’s self-reported symptomology. Owen, 551 F.3d at 800.
After another substantial gap in treatment, and a brief period of incarceration,
Porter was admitted to a residential drug treatment program on June 14, 2016. She was
successfully discharged on July 20, 2016, while being deemed to be at a high risk of
relapse. AR 531-37. A mental status examination by Rogerio Ramos, M.D., noted that
Porter was alert, oriented, with intact memory and normal speech, although her judgment
and impulse control were considered poor. AR 533. After discharge, Porter re-initiated
ongoing therapy, attending a few sessions with Courtney Daniels, Ph.D., before
switching to Dr. Lundell.
As before, many of Porter’s therapy sessions focused on her legal troubles. AR
541-50, 567, 572-78.

Throughout her treatment, Porter endorsed symptoms of

tearfulness, anxiety, paranoia and insomnia. However, her mental status was routinely
assessed as normal.

Porter was alert and oriented, with easily re-directed thought

processes, intact memory, and fair judgment, reasoning, insight and impulse control.
Porter continued on Zoloft without incident through this period of treatment notes.
Again, the lack of recorded cognitive impairments in 2016 is inconsistent with Dr.
Lundell’s opinion regarding Porter’s ability to meet competitive standards for pace and
concentration, thus providing a good reason to discount that portion of her opinion.
Travis, 477 F.3d at 1041; Garza, 397 F.3d at 1089. Further, there is nothing in the
record during this period to support absences from work of greater than four days per
month. The ALJ is free to disregard those portions of a treating physician’s RFC opinion
that are not supported by the treatment record.
Further, I note that the difference between Dr. Lundell’s RFC opinion and the
ALJ’s RFC opinion is very slight. Although Porter argued that the ALJ’s position was
unsupported by the medical record, the similarity between the two opinions, referenced
above, demonstrates that the ALJ seriously considered Dr. Lundell’s opinion and
accepted those portions that are supported by the record. The ALJ had good reasons—
13

consisting of inconsistencies between the record and the opinion, a lack of support for
the most disabling limitations in the opinion, and Porter’s failure to comply with her
treatment plans—to give Dr. Lundell’s opinion less weight. Thus, I find that the ALJ’s
treatment of Dr. Lundell’s opinion was proper and that the resulting RFC is supported
by substantial evidence on the record as a whole. Porter’s objection is overruled.
B.

Failure to Order a Consultative Exam
Porter also argues that Judge Williams erred in failing to consider her argument

that the ALJ should have ordered a consultative exam. Porter argues that “if the
Commissioner felt the medical records from Dr. Lundell did not supply enough
information to make an informed decision, she should have ordered a consultative
examination.” Doc. No. 20 at 5 (citing 20 C.F.R. § 404.1517; Boyd v. Sullivan, 960
F.2d 733, 736 (8th Cir. 1992); Doc. No. 15 at 23-24). In Porter’s brief, this argument
was couched within an argument that the ALJ’s RFC opinion was “not supported by
substantial medical evidence from a treating or examining source.” Doc. No. 15 at 21
(citing, among other cases, Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000) for the
proposition “that it was improper for the ALJ to rely on the opinions of reviewing
physicians alone.”).
Although Porter is correct that Judge Williams did not specifically address
whether an additional consultative exam was necessary in this case, I note that Judge
Williams did consider whether there was substantial medical evidence in support of the
ALJ’s RFC. See Doc. No. 19 at 12 (“Importantly, there is substantial evidence in the
record as a whole to support the ALJ’s RFC assessment.” (internal citations and
quotations omitted)).
In addition, Porter’s argument that a consultative exam was necessary is based on
the faulty premise that there was not sufficient medical evidence in the record from
which the ALJ could establish an accurate RFC. As discussed above, it is clear that the
ALJ relied on Porter’s treatment notes, including those authored by Dr. Lundell, in
14

establishing Porter’s RFC. Indeed, the ALJ’s RFC opinion is consistent with Dr.
Lundell’s opinion in most respects. This is not a Nevland case, in which the ALJ’s
evaluation of a treating physician opinion left the record essentially devoid of medical
evidence.

See, e.g., Fitzgerald Morris v. Colvin, No. C14-4048-LTS, 2016 WL

3360506 at *8-9 (N.D. Iowa June 16, 2016).

Because there is sufficient medical

evidence supporting the RFC, there was no need for the ALJ to order an additional
consultative examination. Porter’s objection is overruled.
V.

CONCLUSION

For the reasons set forth herein:
1.

Plaintiff Dawn M. Porter’s objections (Doc. No. 20) to the Report and

Recommendation (Doc. No. 19) are overruled.
2.

I accept Chief United States Magistrate Judge C.J. Williams’ Report and

Recommendation without modification. See 28 U.S.C. § 636(b)(1).
3.

Pursuant to Judge Williams’ recommendation:
a.

The Commissioner’s determination that Porter was not disabled is

affirmed; and
b.

Judgment shall enter against Porter and in favor of the

Commissioner.
IT IS SO ORDERED.
DATED this 25th day of June, 2018.

__________________________
Leonard T. Strand, Chief Judge

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